Are Judges Political?
An Empirical Analysis of the
Cass R. Sunstein, David Schkade, Lisa M. Ellman, and Andrew Sawicki
Brookings Institute Press, $24.95, 177 pp.
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...