57 Pages Posted: 20 Feb 2009
Rules of social interaction ordinarily prescribe that one who receives a significant benefit from another should hold loyalty and gratitude towards the benefactor. This norm of social exchange can be problematic in the context of appointments to the federal judiciary, due to the requirement that federal judges be impartial adjudicators. In this article, Professor Little explores the role of loyalty and gratitude in society, and the tension that could be experienced by federal judges due to conflicting obligations.
Professor Little begins with a survey of theories of loyalty and gratitude presented by philosophers and sociologists. With this background, Professor Little addresses how loyalty and gratitude present special challenges for federal judges, given the duty of impartiality imposed upon them by the Constitution. Since a federal judgeship is a significant benefit, one would expect that judges will feel loyalty and gratitude towards the individuals responsible for their appointment. A conflict arises because loyalty and gratitude require an individual to be partial - threatening federal judges' abilities to act without bias. Although Professor Little presents possible ways for judges to resolve this tension in practice, she argues that it is not as easy to dismiss the psychological and emotional effects that nomination and confirmation may inflict upon a federal judge. Fear of disappointing a benefactor (often a Senator or the President) will influence adjudication. Professor Little also considers how the benefactor's position, motivation, and perceived level of contribution towards an individual's nomination and appointment can affect the level of obligation the judicial nominee holds toward the benefactor.
In conclusion, Professor Little argues that recent dissatisfaction with the process of appointing federal judges suggests taking seriously the role the selection process can have in causing federal judges to experience tension between their duty of impartiality and social duty to express loyalty and gratitude toward their benefactors. This will not only contribute to a greater understanding of judicial decisionmaking, but will also provide important insight into potential ways to improve the selection and appointment process of federal judges.
Keywords: judicial appointment, judicial selection, nomination, confirmation, federal judges, federal judiciary, law and emotion, societal norms, judicial duty, constitutional law, Article III, conflict of interest, adjudication, impartiality, loyalty, gratitude, decisionmaking, judicial bias
JEL Classification: K19, K39, K40
Suggested Citation: Suggested Citation
Little, Laura E., Loyalty, Gratitude, and the Federal Judiciary. American University Law Review, Vol. 44, p. 699, 1995. Available at SSRN: https://ssrn.com/abstract=1346989