Brian Z. Tamanaha (Washington University in Saint Louis - School of Law) has posted The Several Meanings of 'Politics' in Judicial Politics Studies: Why 'Ideological Influence' is Not 'Partisanship' (Emory Law Journal, Forthcoming) on SSRN. Here is the abstract:
Talk about judicial politics is ubiquitous in the press and in academia today. Discussions of this topic, unfortunately, are often vague or inconsistent about the precise meaning of politics in judging. This essay, a contribution to an Emory symposium on politics and judging, explores several core meanings to help identify what is, and what is not, inappropriate about politics in the context of judging. The failure to mark these differences in meanings and their implications, I argue, distorts matters and has the potential to undermine our judicial system. To illustrate the danger, I discuss the strong parallels between statements by political scientists about the political nature of judging and the argument by a prominent political activist that, since judging is inherently political, conservative judges should aggressively strive to implement the conservative agenda in their legal decisions. I argue that the failure of political scientists to distinguish between “ideological influence” (which is unavoidable in certain contexts) and “partisanship” (which is avoidable) leads to overly broad and misleading statements about politics and judging.