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Are Judges Political?
An Empirical Analysis of the Federal Judiciary
By Cass R. Sunstein David Schkade Lisa M. Ellman Andres Sawicki Brookings Institution Press
Copyright © 2006 Brookings Institution Press
All right reserved. ISBN: 0-8157-8234-9
Chapter One
Studying Judges with Numbers In the last two decades, the United States has witnessed some exceedingly heated debates about the composition of the federal judiciary. Are judges "activists"? Should they stop "legislating from the bench"? Are they abusing their authority? Or are they protecting fundamental rights in a way that is indispensable in a free society? What, exactly, are they doing, and what should they do differently?
Several American presidents have sought to populate the federal courts with judges who, it was hoped, were likely to rule in their preferred directions. In issues including abortion, separation of church and state, environmental protection, and criminals' rights, presidents have wanted judges of a particular kind. On occasion, the United States Senate has checked the president by blocking nominees who were expected to rule in ways that senators disapproved. Under President Bill Clinton, for example, the Republican-controlled Senate Committee on the Judiciary refused to schedule hearings on a number of nominees, effectively preventing their confirmation. To some Republicans, President Clinton'snominees were simply too "liberal." Under President George W. Bush, a Democratic minority in the Senate succeeded in filibustering several controversial nominees. To some Democrats, President Bush's nominees were simply too "conservative." In 2005 Republican and Democratic senators reached an agreement by which most of President Bush's controversial nominees would be confirmed-but the filibuster has yet to be taken off the table.
The objection to presidential nominees to the federal bench has, of course, been most fierce during debates over the Supreme Court. In 1987 President Ronald Reagan's nomination of an extremely distinguished appellate judge, Robert Bork, was rejected by the Senate by a vote of 58 to 42. The rejection was largely based on ideological grounds; no one argued that Judge Bork was incompetent, and the real concern, to his critics, was his likely pattern of votes. President Clinton's choice of Supreme Court nominees was constrained by the anticipated reactions of Republican senators. His ultimate choices, Ruth Bader Ginsburg and Stephen Breyer, were "precleared," in the sense that prominent Republicans signaled that they would be acceptable.
In his own decisions about Supreme Court nominees, President George W. Bush has been entirely aware of the possible negative votes of Democratic senators. His first nominee, John Roberts, was widely regarded as superb in quality and also as acceptable, on ideological grounds, to many moderates and liberals. President Bush's second nominee, White House Counsel Harriet Miers, withdrew after a series of complaints about her lack of experience and about what some conservatives considered to be her insufficiently conservative record. Samuel Alito, President Bush's third nominee, attracted considerable controversy. While no one doubted his credentials, a number of Democrats objected that he was simply too conservative-unduly respectful of executive power and unlikely to safeguard individual rights. Nonetheless, Justice Alito was confirmed by a vote of 58 to 42.
But the focus on the Supreme Court should not obscure the immense importance of lower court nominees. The decisions of lower courts are rarely reviewed by the Supreme Court; their decisions are effectively final. As a result, the courts of appeals play an exceedingly large role both in settling disputes and determining the likely direction of the law. It is for this reason that the likely votes of lower court nominees have played a significant role in national debates.
Underneath these political contests is a degree of uncertainty about how judges actually behave. What is the relationship between judicial votes and political convictions? Is it sensible to divide judges into "liberals" and "conservatives"? Or is it better to say that judges generally follow the law, in a way that makes political views irrelevant? Might the answer to both of the last two questions be a firm no?
Judges and Presidents
The major goal of this book is to shed new light on these questions, simply by looking at what judges actually do. Our focus is insistently empirical. We have compiled a large and distinctive data set, consisting of many thousands of judicial votes in numerous domains. We aim to analyze the data to answer some unresolved questions about the federal judiciary. Almost all of our focus is on the courts of appeals, which are uniquely easy, and uniquely informative, to study. For our purposes, a particular virtue of the federal courts is their intermediate character. The Supreme Court resolves the most difficult and contested cases, and hence it is not exactly a surprise if Republican appointees vote differently from Democratic appointees. The federal district courts conduct trials, and many of their cases are routine, at least as a matter of law; it should not be surprising if, in such cases, Republican and Democratic appointees are essentially indistinguishable. (We are not claiming that this is in fact the case in all domains.) The courts of appeals decide cases that are often difficult and contested, but usually not so much so as those that reach the Supreme Court. The decisions of these courts therefore provide an exceedingly illuminating test of the role of politics in judicial judgments.
With respect to federal courts of appeals, the United States has, in fact, been conducting an extraordinary and longstanding natural experiment. The experiment involves the relationship between presidential choices and judicial decisions. The vast majority of appellate decisions are rendered by three-judge panels, and the membership of these panels is the result of a random draw from the group of judges sitting on the circuit in which the case is appealed. Because of the random assignment of judges, it is possible to study how Republican and Democratic appointees differ from one another in a remarkably wide range of cases. If presidents care about a judge's likely rulings-and what president does not?-then an investigation of the effect of presidential appointments will tell us something important. Most simply, it will show whether Republican and Democratic presidents select judges with different views, and it will show the extent to which they differ as well. Such an investigation will also provide some information on the relationship between what might be called "political ideology" and judicial judgments.
To be sure, many people believe that, as a general rule, political ideology should not and does not affect legal judgments. We agree, and we shall attempt to show that this belief contains some important truth. Frequently the law is clear, and judges should and will simply implement it, no matter who has appointed them. Both President George W. Bush and Senator John Kerry, for example, have emphasized that judges ought to follow the law, and we shall provide considerable evidence to suggest that they do exactly that. But what happens when the law is unclear? In that event, it is hopelessly inadequate to ask judges to "follow the law." By hypothesis, the law does not provide anything to "follow." In such cases, does the political affiliation of the appointing president matter? What role does ideology play then?
It is easy to imagine two quite different positions. It might be predicted that even when the law is unclear, in the sense that binding precedents cannot be found, ideology does not matter; the legal culture itself imposes a sharp discipline on judges, so that judges vote as judges rather than as ideologues. Perhaps judges protect freedom of speech, or equality under the law, regardless of their personal beliefs, even in difficult cases not controlled by existing law. Alternatively, it might be predicted that, in hard cases, the judges' "attitudes" end up predicting their votes, so that liberal judges, or judges appointed by Democratic presidents, show systematically different votes from those of conservative judges, or those appointed by Republican presidents. The "attitudinal model," influential and well known in law and politics, attempts to explain judicial votes in just these terms.
It is important to make a distinction here. We might want to test the effects of the political affiliation of the appointing president; alternatively, we might want to test the effects of judicial ideology itself. It would be exceedingly valuable to know whether and where Republican appointees differ from Democratic appointees. It would also be valuable to know the differences across presidents. For example, do the appointees of President Bill Clinton differ from those of President Jimmy Carter? What are the differences, if any, among the appointees of Presidents Richard Nixon, Ronald Reagan, George H. W. Bush, and George W. Bush?
We are able to make considerable progress on these questions, and hence we shall focus throughout the book on the political affiliation of the appointing president. But that affiliation is only a proxy for judicial ideology. Democratic presidents have been known to appoint relatively conservative judges, and Republican presidents have been known to appoint relatively liberal ones. In American history, many presidents have followed the practice of "senatorial courtesy," by which senators from the president's party have a substantial role in picking judges to fill seats in their own states. As a result, there can be a significant difference between a president's political commitments and the general approach of the judges appointed by that president.
This point should not be overstated. In the modern era, at least, presidents are usually interested in ensuring that judicial appointees are of a certain stripe. A Democratic president is unlikely to want to appoint judges who will seek to overrule Roe v. Wade and strike down affirmative action programs. A Republican president is unlikely to want to appoint judges who will interpret the Constitution to require states to recognize same-sex marriages or to eliminate religion from the public sphere. It is reasonable to hypothesize that as a statistical regularity, judges appointed by Republican presidents (hereinafter described, for ease of exposition, as Republican appointees) will be more conservative than judges appointed by Democratic presidents (Democratic appointees, as we shall henceforth call them).
But is this hypothesis true? If so, when is it true, and to what degree is it true? What exactly is meant, in this context, by "more conservative"? We shall try to answer these questions. In a way, the political affiliation of the appointing president actually provides a more interesting benchmark than ideology itself, assuming that we could obtain direct access to it (as some studies have done, in efforts to explore the role of judicial ideology as such). Does it matter whether judges are appointed by a Democratic or a Republican president? If so, when does it matter, and how much does it matter? What difference do particular presidents make? Were President Reagan's appointees, for example, different from President Nixon's appointees?
There is a more subtle and more intriguing possibility. Human beings are often influenced by other human beings, particularly those with whom they frequently interact. When like-minded people get together, they often go to extremes. And sometimes people suppress their private views and conform to the apparent views of others. Drawing on these findings, we might speculate that federal appellate judges are subject to "panel effects"-that the votes of individual judges are affected by the votes of other judges on the panel. On a three-judge panel, a judge's likely vote might well be affected by the other two judges assigned to the same panel. In particular, we might ask: Does a judge vote differently depending on whether she is sitting with no judge, one judge, or two judges appointed by a president of the same political party?
It might be hypothesized that a Republican appointee, sitting with two Democratic appointees, would be more likely to vote as Democratic appointees typically do-whereas a Democratic appointee, sitting with two Republican appointees, would be more likely to vote as Republican appointees typically do. But is this, in fact, the usual pattern? Is it an invariable one? Recall that judges in a given circuit are assigned to panels (and, therefore, to cases) randomly. A fortunate consequence is that the existence of a large data set allows these issues to be investigated empirically.
Controversial Cases and Three Hypotheses
In this book, we examine many different areas of the law, focusing on a number of controversial issues that seem especially likely to reveal divisions between Republican and Democratic appointees. Our list of areas is long. We explore cases involving abortion, affirmative action, campaign finance, capital punishment, Commerce Clause challenges to congressional enactments, commercial speech, congressional abrogation of state sovereign immunity, the Contracts Clause, criminal appeals, disability discrimination, the Federal Communications Commission (FCC), gay and lesbian rights, environmental regulation, the National Labor Relations Board (NLRB), the National Environmental Policy Act (NEPA), obscenity, standing, school and racial segregation, piercing the corporate veil, punitive damages, race discrimination, sex discrimination, sexual harassment, and takings of private property without just compensation. We will offer a more detailed description of our subjects and methods below.
Our initial goal is to examine three hypotheses:
1. Ideological voting. In ideologically contested cases, involving the most controversial issues of the day, a judge's ideological tendency can be predicted by the party of the appointing president: Republican appointees vote very differently from Democratic appointees.
2. Ideological dampening. A judge's ideological tendency is likely to be dampened if she is sitting with two judges of a different political party. For example, a Democratic appointee should be less likely to vote in a stereotypically liberal fashion if accompanied by two Republican appointees, and a Republican appointee should be less likely to vote in a stereotypically conservative fashion if accompanied by two Democratic appointees. If ideological dampening occurs, it follows that in disability discrimination cases, Democratic appointees will be more likely to side with employers when sitting with two Republican appointees-and that when sitting with two Democratic appointees, Republican appointees will be more likely to side with disabled people.
3. Ideological amplification. A judge's ideological tendency, in ideologically contested cases, is likely to be amplified if she is sitting with two judges from the same political party. A Democratic appointee should show an increased tendency to vote in a stereotypically liberal fashion if accompanied by two Democratic appointees, and a Republican appointee should be more likely to vote in a stereotypically conservative fashion if accompanied by two Republican appointees. If this hypothesis turns out to be true, it would have large implications, because it would suggest that like-minded judges might well go to extremes.
Note that for purposes of measuring ideological dampening and ideological amplification, we take, as the baseline for analysis, cases in which a judge sits with one Republican appointee and one Democratic appointee. Unfortunately, we do not have any record of how federal judges vote in isolation. But it seems natural, and at least illuminating, to start with cases in which judges sit with an appointee of both parties, and to see how their patterns shift when they sit with two appointees of a single party.
We find that in numerous areas of the law, all three hypotheses are strongly confirmed. Each hypothesis finds support in federal cases involving affirmative action, NEPA challenges, congressional abrogation of state sovereign immunity, sex discrimination, disability discrimination, sexual harassment, review of environmental regulations, campaign finance, piercing the corporate veil, racial discrimination, segregation, obscenity, Contracts Clause violations, restrictions on commercial advertising, and the NLRB. In such cases, our aggregate data support all three hypotheses.
(Continues...)
Excerpted from Are Judges Political? by Cass R. Sunstein David Schkade Lisa M. Ellman Andres Sawicki Copyright © 2006 by Brookings Institution Press . Excerpted by permission.
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