Are Judges Political?: An Empirical Analysis of the Federal Judiciary [Hardcover]

Cass R. Sunstein (Author), David Schkade (Author), Lisa M. Ellman (Author), Andres Sawicki (Author)

Book Description

Publication Date: June 8, 2006

Americans are engaged in an intense debate about their judicial branch of government. Some people worry about "activist" judges who are "legislating from the bench," making an end run around electoral democracy, while others feel that the judiciary is properly protecting fundamental rights. How do the political leanings of judges affect their activity on the bench? To put it another way, Are Judges Political? And to what degree? This provocative book produces real answers by looking at what judges actually do, injecting fact and analysis into a discussion that is all too often overwhelmed by sound bites and ideological howling. Renowned legal analyst Cass R. Sunstein (Republic.com), management scholar David Schkade, attorney Lisa Ellman, and judicial clerk Andres Sawicki examine thousands of judicial votes to analyze the influence of ideology on judicial decisions. Focusing principally on the federal courts of appeal, where judgments are made by a panel of three politically appointed judges, the authors scrutinize decisions on some of the most controversial issues in American law and politics. They look at controversial, sometimes polarizing issues--abortion, affirmative action, campaign finance regulation, disability discrimination, environmental protection, and gay rights. They focus on these key questions: Do judges appointed by Republican presidents consistently vote differently from their colleagues who were appointed by a Democrat? When are those differences most stark and predictable? And to what degree are judicial votes affected by the ideological leanings of other judges on the same panel? For example, do judges who find themselves a minority of one behave differently than those who hold either a 2–1 or 3–0 edge? Are Judges Political? injects precision into an impassioned but often impressionistic discussion by quantifying how ideology affects legal judgments. Interestingly, even in the most controversial cases, Republican and Democratic appointees agree more than they disagree. When they do disagree, however, the analysis of who votes how (and under what circumstances) can be quite illuminating and tells us a great deal about human nature as well as politics and justice in America. Are Judges Political? finds that judges do adhere to the law, but where the law is not plain, political convictions clearly play a role role. And when like-minded judges sit together, they may well go to extremes.

Editorial Reviews

Review

"Are Judges Political? greatly informs the debate, with its empirical findings and its discussion of their pragmatic significance." -- Frank B. Cross, Herbert D. Kelleher Centennial Professor of Business Law at the University of Texas–Austin

"Are Judges Political? is thoughtful and careful. It is a terrific empirical introduction to the politics of judicial decisionmaking." -- Jeffrey A. Segal, Stony Brook University, coauthor (with Lee Epstein) of Advice and Consent: The Politics of Judicial Appointments

"A solid piece of research. . . The book couldn't come at a better time." -- Lee Epstein, Beatrice Kuhn Professor of Law at Northwestern University

About the Author

Cass R. Sunstein is the Karl N. Llewellyn Distinguished Service Professor of Jurisprudence and a professor of political science at the University of Chicago. Among his many books are Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for Americans (Basic Books, 2005) and Why Societies Need Dissent (Harvard University Press, 2005). David Schkade is the Jerome Katzin Professor in the Rady School of Management at the University of California-San Diego and a coauthor of Punitive Damages: How Juries Decide (University of Chicago Press, 2003). Lisa M. Ellman holds a law degree and a master's degree in public policy from the University of Chicago and is an Associate at Mayer, Brown, Rowe & Maw LLP in Washington, D.C. Andres Sawicki, a graduate of the University of Chicago Law School, is currently clerking for the Honorable Robert D. Sack of the U.S. Court of Appeals for the Second Circuit.

Product Details

• Hardcover: 177 pages
• Publisher: Brookings Institution Press (June 8, 2006)
• Language: English
• ISBN-10: 0815782349
• ISBN-13: 978-0815782346
• Product Dimensions: 9.2 x 6.4 x 0.8 inches
• Shipping Weight: 15.2 ounces (View shipping rates and policies)
• Average Customer Review: 5.0 out of 5 stars  See all reviews (1 customer review)
• Amazon Best Sellers Rank: #902,198 in Books (See Top 100 in Books)

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18 of 18 people found the following review helpful:

5.0 out of 5 stars More Insight into Behavior on the U.S. Courts of Appeals, August 1, 2006

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Ronald H. Clark (WASHINGTON, DC USA) - See all my reviews
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This review is from: Are Judges Political?: An Empirical Analysis of the Federal Judiciary (Hardcover)

This is the second of two current book-length examinations of judicial behavior on the United States Courts of Appeals. The other book is "Judging on a Collegial Court" by Hettinger et al., also reviewed on Amazon. The Courts of Appeals, or middle level of the federal court system, merit such attention because for nearly all federal litigation, they are the ultimate court of decision as they oversee the 93 or so district courts. As was the case with the Hettinger volume, while there is no denying that the authors rely upon statistical methods and even (perish the thought!) an occasional chart displaying data, the analysis is so clear and well developed that one does not have to be a political scientist or statistician to follow the discussion quite nicely. And this is vital because these courts are extremely important.

The authors set out to test three fundamental hypotheses with data drawn from examination of 6,408 cases involving some 19,224 separate judicial votes during the 1995-2004 period. First, in ideologically-contested controversial cases, can voting "tendencies" be predicted based on the party of the appointing president? Next, does "ideological dampening" -- that is, the presence of two judges of a different political party on the panel -- influence a third judge of a different party? Finally, is there "ideological amplification" of judicial attitudes if all three judges on a panel are of the same party, so that more extreme positions are taken than with a mixed panel?

The authors find that all three of these hypotheses are supported in a wide range of cases involving 13 issues such as campaign finance, sexual discrimination, and commercial speech. However in five areas, the authors find that party identification of the judge does not matter: criminal justice; federalism & commerce clause; takings under the 5th Amendment; punitive damages; and standing questions. As for abortion and capital punishment (and perhaps gay/lesbian rights), attitudes are so entrenched that no matter what the panel's composition, its members will not modify their previous views.

There is much more to the authors' analysis than space allows for discussion. The key point raised by the book is the importance of maintaining an ideologically diverse federal judiciary, an increasingly difficult task given recent GOP campaigns to fill the courts with conservative judges. The authors do find that the federal judiciary is becoming more conservative and so the point is more than an academic one. This is an important book published by the Brookings Institution here in Washington that serves as a well-documented introduction to discussions of this very important issue.