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

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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.