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An Empirical Analysis of the Federal Judiciary
Brookings Institution Press
June 2006
177 pages
ISBN: 0815782349
Hardcover
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Non-Fiction Political
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.
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