Balance & the Bench

Borked. Filibuster! The nuclear option! The Gang of Fourteen. For two decades now U.S. senators have fought fiercely about the appointments of federal appellate judges, all in the belief that the political ideologies of judges affect their decisions. But do they? This dazzling little book answers the question-and the answer is more interesting than we would have thought. Are Judges Political? will change and deepen the way we think about the law and judges.

The twelve regular U.S. Circuit Courts of Appeals review the decisions of the federal trial courts and hear the less numerous appeals from decisions of federal administrative agencies. A federal circuit court typically has jurisdiction over a set of contiguous states: the Sixth Circuit, for instance, covers Kentucky, Michigan, Ohio, and Tennessee. The circuit courts have different complements of judges: the Tenth Circuit is now authorized to have twelve judges; the Ninth, serving a far more populous set of states, twenty-eight. The judges have lifetime tenure.

Appeals to the circuits are heard and decided by panels of three judges. The panel that will hear a given appeal is composed of judges chosen largely at random from a circuit court’s roster (and occasional senior-status judges and stand-ins from other federal courts). In any year, thousands of decisions come down from these panels. The decisions are published or otherwise accessible, and the votes of the individual judges are recorded. Sunstein, Schkade, and their colleagues approached this wonderful data set with two hypotheses:

1. In ideologically contested cases (that is, cases involving an area of controversy in which there are a generally recognized “liberal” position and a countering “conservative” position), the ideological tendency of a judge’s voting can be predicted by the political party of the president who appointed him or her.

2. This tendency is affected, however, by the makeup of the three-judge panel. A Democratic appointee is less likely to vote in a stereotypically liberal way if sitting on a panel with two Republican appointees, but more likely to vote liberal if sitting with two Democratic appointees. A Republican appointee will be influenced in a similar way by the makeup of his or her panel.

To test these hypotheses the authors examined 6,408 published decisions and the 19,224 votes of the judges in these cases. They confined their study to twenty-three areas of law that are acknowledged to be ideologically contested: abortion, capital punishment, the Americans with Disabilities Act, piercing the corporate veil, racial discrimination suits brought by African-American plaintiffs, congressional abrogation of state governments’ immunity from suits under federal laws, campaign finance, environmental regulation, etc. In each area, they identified the “liberal” position. A vote to afford a plaintiff relief in a sex discrimination case, for instance, was coded “liberal.” So also was a vote to allow a plaintiff victimized by a corporate misdeed to “pierce the corporate veil,” to recover damages, that is, not only from the corporation but also from the corporation’s officers themselves. The authors limited their research to the period January 1, 1995 to June 30, 2004, except in areas (for example, restrictions on commercial speech) where they had to go back further to accumulate a sufficient data set.

What did they find? Are judges political? Overall, federal circuit judges appointed by Democratic presidents “vote liberal” in cases 52 percent of the time, Republican appointees 40 percent. A substantial difference, but not overwhelming. Remember, a judge’s first guide is not his or her policy preference, but the received law-the words of the controlling statute or the direction of the courts’ decisions in previous similar cases. A judge’s oath, judicial professionalism, and the scrutiny of colleagues require this received law be heeded.

But many, many cases go to trial and appeal because the implications of the received law for the facts of a given case are not at all clear. Indeed, often there is no received law: the statute is ambiguous-perhaps the price of getting it passed in a divided legislature-or the common law has not previously had to address a situation similar to this. It is then that judges are forced to look for another guide to help them decide. Inevitably, their own instincts and beliefs will enter here.

So, yes, these judges are political-to a degree. The authors’ most remarkable findings, however, come from the data bearing on their second hypothesis, that judges’ votes in these controversial areas are affected also by the preferences of the other two members of the three-judge panels deciding the cases. A Democratic appointee will vote liberal 52 percent of the time when sitting on a panel with one other Democrat and a Republican appointee. When he is the lone Democratic appointee on the panel he will vote liberal in only 44 percent of the cases. And when he is sitting on an all Democratic appointee panel, he will vote 64 percent liberal! Similar numbers apply to the Republican appointees: they will vote liberal only 31 percent when sitting on an all-Republican panel, but half again as much, 46 percent, when sitting with two Democratic appointees.

Most surprising, a Democratic appointee sitting with two Republicans is no more likely to vote liberal than is a Republican sitting with two Democrats.

What do these numbers tell us? Certainly, they suggest strongly that these judges listen to one another and in most areas can be persuaded to go against their personal ideological proclivities. They also suggest that the judges horse trade: a judge about to be outvoted 2-1 will agree to join the majority if they in return will narrow the holding-strike down, say, an environmental regulation, but with an opinion that leaves open the possibility that other, less aggressive environmental regulations might be upheld. From almost any point of view, these implications are good news about our federal appellate judiciary.

The numbers also bring not-so-good news. “Our most dramatic finding is ideological amplification.” Panels composed entirely of appointees of one party tend to extremes. Bringing an appeal in federal circuit court you are twice as likely (64 percent to 31 percent) to get a “liberal” decision when the panel happens to consist of three Democrats as when it consists of three Republicans. This effect is more pronounced in some areas of law than in others. An institution defending its affirmative-action plan against a complaint that the plan is unfair to members of the racial majority has a one-in-three chance of prevailing before an all-Republican appointee panel, but better than a four-in-five chance before an all-Democratic appointee panel. Such disparities corrode the courts’ most precious asset, the perception that they are places where only the law rules.

The authors also ask whether the ideological complexion of the federal circuit courts is changing over time. Since 1980, three Republican presidents, two of them vociferous about appointing appellate judges who are “conservative,” have held the White House for a total of eighteen years. The judicial nominees of the one Democratic president in this era were dogged by a Republican-controlled Senate for six of the eight years he held office. Republican social conservatives, deeply disappointed by Republican-appointed Justice David Souter’s jurisprudence, tried to sharpen the ideological examination of potential nominees for the federal appellate courts. Has all this given us a more conservative federal appellate judiciary? What does the voting data on which this book is based show?

Alas, although these thousands of three-judge panel decisions constitute a remarkable data set, it is not the fruit of a controlled experiment. The authors simply are unable to introduce controls for all confounding variables. They are scrupulously cautious in drawing conclusions. “A slight overall trend toward conservatism over the last twenty-five years” is as much as they will say the data on judges’ voting through June 30, 2004, conclusively shows.

But Sunstein and Schkade follow this with a vigorous coda. They have found a startling difference, described above, between the voting patterns of mixed-party panels and all-one-party panels. They worry further about the content of the decisions that come down from all-Democratic appointee panels and the now increasing numbers of all-Republican appointee panels-decisions written when there was no one in the room to urge the opposite point of view and to narrow the holding. “It is hopelessly inadequate to say that judges simply ‘follow the law,’” they remind us. “Often, there is no law to follow; judges must exercise discretion.” Where the absence of controlling law gives the judges such freedom, the authors urge, they need a demurring colleague to rein them in.

The value of tightly tailored decisions was endorsed in a speech last May by Chief Justice John Roberts. Unanimous or near unanimous decisions, he said, “promote clarity and guidance for the lawyers and the lower courts....The rule of law is strengthened when there is greater coherence and agreement about what the law is.” But how to elicit univocal opinions from a U.S. Supreme Court that, happily, always will be somewhat ideologically diverse? Decide each case “on the narrowest possible ground,” Roberts counseled-the narrower the ground, the better chance of broad agreement among the justices. The chief justice would be intrigued by this book.

Published in the 2006-10-06 issue: 
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Neil Coughlan, author of Young John Dewey, is a lawyer in Connecticut.

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