First the obvious one. A strong sentiment is circulating that federal judicial appointments in the next four years will be tough sledding.

The Washington Post reported on Dec. 13, 2000 that “an aide to Senate Democrats who asked not to be identified said any Bush nominee to the court would face ‘very intense scrutiny. …’”

Even the conventional deference afforded in advising and consenting is likely to disappear for a while. Not even the best team of Siberian Huskies could pull a far-right nominee through the process.

If the prospects are examined realistically, confirmation of nominees for any vacancies in the U.S. high Court coming in the next four years will probably go to a particular type of candidate. My guess is they will be jurists in their mid-60s with more than 20 years on the bench, an extensive written record of judicial scholarship, generally centrist views, and the respect of a good cross-section of the bar.

Those candidates would be expected to sit about another 10 years, not 20 or 30.

It would be hard for Democrats in the Senate seriously to oppose such a balance. Probably the very best candidates available in the country fit this profile anyway.

The chance that Justice Antonin Scalia will wear the robes of chief justice (if Chief Justice William Rehnquist really steps down) now seems slim. In the same Washington Post article, Professor Howard Gillman of the University of Southern California is quoted as saying that may now be “off the table.” The next chief may be a total newcomer.

Bush for ‘Precedent’

The second potential ripple is more enigmatic. On the one hand Bush v. Gore tilts courts toward a process less restrained by stare decisis and more legislative in its final resolutions of individual cases.

On the other hand, the decision may have created an equal protection giant that will push the courts the other way and demand strict equality in the application of precedent.

Traditionally, judicial justice has been viewed as the steady application of accepted principles to all similar fact situations. The wide use nationally of the non-precedential memo and the opaque judgment order, however, has already raised questions whether there is an “underground body of law” lacking in such careful consistency.

Then comes along the decision that was watched and pored over by the whole nation – Bush v. Gore. The traditions of federalism (that had made federal courts slower than a glacier to override state courts) suddenly appeared to change, speeding the court toward a broad equal protection theory.

Bush, the precedent, could prove more important than anyone, including the majority, conceived on Dec. 12, 2000 – that is, if stare decisis is applied. Access to the courts, like voting, is a great right. Courts that have the “power to assure uniformity” in decisions might now be thought more clearly to have an equal protection obligation to do so.

The decision in Bush, however, carried the following label that makes it wobbly as a precedent: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

The formulation of broad principles of equal protection to reverse a state’s highest court on the subject of state manual vote recounts would have been material for Nostradamus two months ago. Now that we have the decision, and maybe a particular president because of it, we have to ponder whether we will see the likes of it again.

The court’s declaration in Bush that its broad legal decision may be “case-specific” itself recalls the techniques of judgment orders and memorandum opinions that don’t carry precedential effect and may not be based on strict precedent.

I have previously referred to the 8th Circuit panel’s decision in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), which struck down a court rule that made unpublished decisions non-precedential. The gist of that case was that every litigant was inherently entitled to have all precedents conscientiously weighed and applied, or else generally overruled.

“The judicial power of the United States [described in Article III of the constitution] is,” the Anastasoff court said, “limited by the doctrine of precedent.”

In other words, case decisions, like votes, have to be counted. And they must be counted by means of a consistent and standard application across the judicial board.

Anastasoff stated the proposition frankly and in terms to which equal protection could now also reasonably apply: “It is often said among judges that the volume of appeals is so high that it is simply unrealistic to ascribe precedential value to every decision. We do not have time to do a decent enough job, the argument runs, when put in plain language, to justify treating every opinion as a precedent. If this is true, the judicial system is indeed in serious trouble, but the remedy is not to create an underground body of law good for one place and time only.”

Only the equal application of precedent assures a reasonable measure of predictability and any semblance of equality. Only the equal application of precedent limits standardless and unreviewable deviations.

Judgment orders and non-precedential decisions may not be able to stand next to the equality of standards demanded in Bush. That is, if Bush is treated as a true precedent.

Let’s not kid ourselves about what’s at stake for our profession if the judiciary can make one-time-only decisions that aren’t accountable to stare decisis. There would be no place for lawyers learned in the law. There would be little to be learned in, and no reason at all to cheer efficient, mass dispositions.

Advocates might at least consider putting Bush v. Gore, by extension, to the test and demanding precedential decision-making every time. If your case isn’t decided in the stream of precedent or isn’t placed into that stream for reliance by others, it is inherently less equal than the cases that are marked as precedent.

Give some thought to whether Bush may be a precedent. Cite it early and (because there is no one-person, one-cite rule) cite it often. Just don’t harbor any great expectations.