Vol. 16 No. 11 (November, 2006) pp.902-905
ARE JUDGES POLITICAL? AN EMPIRICAL ANALYSIS OF THE FEDERAL JUDICIARY, by Cass R. Sunstein, Davide Schkade, Lisa M. Ellman, and Andres Sawicki. Washington: The Brookings Institution, 2006. 128 pp. Cloth $24.95. ISBN: 0815782349.
Reviewed by Doris Marie Provine, School of Justice & Social Inquiry, Arizona State University. Email:marie.provine [at] asu.edu.
Of course judges are political. Can anyone imagine studying American politics without considering the judiciary? All the brouhaha about judicial activism suggests the relevance of partisan politics to the judicial process. A more accurate title to this empirical study might have been: HOW ARE JUDGES POLITICAL? The authors select one provocative piece of the big puzzle of judging and politics for careful consideration: the relationship between judicial votes and the appointment process. A donkey and an elephant on the dust jacket hint at the direction of their concern, which is, more specifically: whether the party affiliation of the appointing President affects the votes of judges on the federal Courts of Appeals in the contemporary era.
The authors, two distinguished professors, one in law, the other in management, and two recent law-school graduates, focus on approximately 6400 recent cases decided with full opinion by three-judge panels. The 24 areas of law represented in the sample were selected to feature the most controversial issues on the federal docket in the past decade or so – e.g. abortion, environmental protection, federalism, desegregation, criminal appeals, obscenity.
The authors count the number of liberal votes in these cases, looking for differences between judges appointed by Republican presidents (Rs for this analysis), and those appointed by Democrats (Ds). Not surprisingly, they find some differences. Individual Ds vote liberal 52 percent of the time overall, compared to 40 percent for the Rs. The authors also look for “panel effects” – indications that the make-up of the panel diminishes or augments partisan tendencies. And they find them. Put three Ds together, and the percentage of liberal votes climbs to 62 percent; three Rs produce 36 percent liberal votes. A mixed panel dampens partisan effects: an R on a panel with two Ds will lessen liberal tendencies, just a D will liberalize two RRs on a panel. Interestingly, these patterns hold across most, but not all, of the case types the authors studied. One of the surprising exceptions is criminal appeals, where there are no significant differences between Rs and Ds. Another interesting anomaly is in abortion and death penalty cases, where the individual R and D differences are clear, but there are no discernable panel effects.
The authors make much of these differences, and even occasionally slip into suggesting that the party of the appointing president is a “fairly good predictor” of how an individual judge [*903] will vote. This is a significant overstatement. The authors eliminated from consideration all cases decided without opinion, over 80 percent of the docket, and then selected the areas they deemed most controversial from those with opinions. Even in that small sample, selected to maximize partisanship, the Ds only voted liberal 12 percent more often than the Rs. An alternative reading of the data might note the overwhelming unanimity of the Courts of Appeals about what is and is not a significant legal question, and the significant agreement in the most controversial cases, with Ds voting against liberal results 48 percent of the time and Rs voting liberal in 40 percent of these cases.
The authors’ explanation for the differences they find amounts to an inductively derived theory of judicial decision-making. Federal litigation, they suggest, offers up many easy cases for which there is an obvious legally correct answer, and a much smaller number of “hard” cases for which there is no obvious answer. The absence of law in these cases forces judges to reason by analogy, and that is where attitudes and ideology come into play. They admit that the party of the appointing President is a crude proxy for judicial ideology (p.16), but nevertheless find it of great practical value for their analysis because it connects judging to the larger political system. They dismiss the “attitudinal model” that has been so heavily researched by political scientists as “less interesting” than their own approach, and less complete. It has nothing to say, for example about group effects, which have a major impact on votes in their study.
It is hard not to be irritated with the out-of-hand dismissal of so much scholarly effort, or with the fact that nearly everyone acknowledged in the book comes from the world of legal education, law practice and business, not political science. Had they rummaged around a bit in this literature, they might have found answers to a few of their questions – e.g. about the impact of being new on the bench, or why there was no immediate impact to BROWN v. BOARD OF EDUCATION. But they are right to claim that their project is distinctive. Political science attempts to show how judges are political. These authors want to demonstrate, unequivocally, that judges are political. They are comfortable treating judicial decision-making as a black box, sometimes working mechanically according to the firm lines of law, and when that is not available, following a more partisan course. The focus is on the implications of the connection they show, not on the mind of the judge. Even in discussing three-judge panels, they are more interested in outcomes than the social process of decision.
Outcomes, at this level, of course, are, to some degree, influenced by decisions in the United States Supreme Court. The authors investigate this relationship by choosing three areas in which the Court has spoken definitely in one or two important cases (abortion, obscenity, segregation). They look for changes over time in how judges in the Courts of Appeals handle cases in each area. In line with their theory that legal questions [*904] can either be easy (requiring only application of clear law) or hard (lacking a clear legal path), they expect unanimity at first because the Supreme Court has laid down the law. Over time, however, they expect a slide toward partisanship – these later cases involve questions not directly addressed in the Supreme Court’s precedent-setting opinion. This is exactly what they find in all three areas. What they have more difficulty explaining is why litigants persist in suing over issues that have been more or less conclusively resolved by the Supreme Court. A rational litigant, they presume, would not proceed with the expense of an appeal if there were not a reasonable chance of winning.
Is partisanship getting worse? Are some Presidents more inclined to appoint partisan judges than others? Are federal appeals courts becoming more conservative? The authors find answers to these questions in their data. Partisanship, as measured by differences between Rs and Ds, is increasing. Appointing Presidents do vary in their partisanship – e.g. Clinton emerges as more conservative than Johnson or Carter. And the Courts of Appeals are becoming more conservative over time. The authors are additionally able to show that some circuits tend to be more liberal than others.
The authors worry that these trends may erode public confidence in the rule of law. How must litigants feel when they know that drawing a panel of three Ds is twice as likely to lead to a liberal outcome as drawing a panel of three Rs? This question has been posed in other contexts that social scientists study, most famously in MCKLESKEY v. KEMP (1987) where Professor David Baldus showed that African Americans convicted of murdering white victims have a greater chance of the death penalty than any other racial combination of killers and victims (see Baldus and Woodworth 1997). The Supreme Court accepted the statistics, but gave them no legal significance. The difference in these two situations, of course, is that race is not supposed to correlate with outcomes, whereas our system is designed for partisanship to have a role. The question then, is what role? Should the judicial selection process be revised to dampen partisan effects – e.g. by mandating “mixed” panels, or involving a judicial selection commission in the nominations process? The authors note that federal regulatory agencies take this approach to reduce partisanship. But to follow this example in the judiciary would require openly acknowledging the indeterminacy of law, which might be worse than simply living with it.
This book is likely to be a point of reference in coming battles over the Senate’s growing involvement in the judicial nominations process. It will probably be cited by those who want the Senate to take a more active role in scrutinizing the President’s judicial choices. But this study suggests a path some Senate activists may not wish to follow. The authors ask the Senate to be realistic about its requirements. No more pretending that there is only one correct approach to statutory or constitutional understanding. The Senate should inquire into the nominee’s [*905] approach to interpretation, but with the object of maintaining a robust diversity of views, which, in the long run, will enhance judicial credibility. This book, in short, challenges the Senate and the President not to pack the courts.
ARE JUDGES POLITICAL? also challenges the Law and Courts field to be clear about its premises about the decisional process and to consider the implications of its findings. These authors see litigation as a game played by rational actors who deploy law to their advantage, while judges are umpires. Judge-umpires decide who has the best law, but when both sides are weak, they decide in a way that tends to support the politics of the President who appointed them. The authors worry about excessive partisanship in judging, believing, like John Stuart Mill, that a contest of ideas leads to a better result. Their clarity and the relatively narrow scope of their analysis make for a short, readable, book that gets to implications after only 128 pages of straight-forward, hypothesis-driven, data-mining text. The accessibility of this book makes it a good choice for teachers who want to provoke students to discuss issues on the basis of empirical evidence, and it might lead some students to think about doing this kind of research themselves.
Baldus, David and G. Woodworth (1997). RACE DISCRIMINATION IN AMERICA'S CAPITAL PUNISHMENT SYSTEM SINCE FURMAN V. GEORGIA (1972): THE EVIDENCE OF RACE DISPARITIES AND THE RECORD OF OUR COURTS AND LEGISLATURES IN ADDRESSING THIS ISSUE (report prepared for the American Bar Association).
MCKLESKEY v. KEMP (1987) 481 U.S. 279.
© Copyright 2006 by the author, Doris Marie Provine.
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Are Judges Political?