« Imagining a SuperBowl party with the Koch brothers, Al Franken, Rob Portman, David Keene, Piper Kerman and Van Jones | Main | Seemingly without a "grim roster of victims," California reduces extreme prison crowding as ordered in Plata »

February 1, 2015

"Why Judges [and criminal case decisions] Tilt to the Right"

The title of this post is a slight modification of the headline of this interesting new piece by Adam Liptak in the New York Times. Here are excerpts:

Lawyers on average are much more liberal than the general population, a new study has found. But judges are more conservative than the average lawyer, to say nothing of the graduates of top law schools. What accounts for the gap?  The answer, the study says, is that judicial selection processes are affected by politics.

Judges are, of course, almost without exception lawyers.  If judges reflected the pool from which they were selected based on politically neutral grounds like technical skill and temperament, the bench might be expected to tilt left.  But something else is going on.

“Politics plays a really significant role in shaping our judicial system,” said Maya Sen, a political scientist at Harvard’s Kennedy School of Government and one of the authors of the study. Since judges tend to be more conservative than lawyers, she said, it stands to reason that the officials who appoint judges and the voters who elect them are taking account of ideology.  She said the phenomenon amounted to a politicization of the courts, driven largely by conservatives’ swimming against the political tide of the legal profession.

Eric A. Posner, a law professor at the University of Chicago, said the paper might have drawn the wrong conclusion from the right data. “The authors argue that a court is politicized if the judges deviate from the ideology of the underlying ideological distribution of attorneys,” he said. “Maybe.”

But an equally powerful case could be made, he said, for viewing courts as politicized if they failed to reflect the ideology of people generally.  “On this view,” Professor Posner continued, “we should congratulate rather than condemn Republicans for bringing much-needed ideological balance to the judiciary.”

Either way, said Tracey George, a law professor and political scientist at Vanderbilt University, the study explored a distinctive feature of American justice.  Foreign legal systems tend to be homogeneous, she said, with lawyers and judges closely aligned ideologically. “You would think there would be a better match” in the United States, she said. “Why would the attorneys facing the bench be so different from the people looking back at them in robes?”

The study is based on an analysis of the campaign contributions of American lawyers, a group that turns out to be exceptionally active in the financial side of elections.... Federal judges and many state judges are barred by ethics rules from making contributions, but a majority did write checks to political campaigns before they joined the bench. Indeed, future judges gave at an even higher rate than lawyers generally.  About 67 percent of future federal trial judges made contributions.  Future state Supreme Court justices gave at the same rate.  And 80 percent of future federal appeals court judges wrote checks to politicians....

The new study considered how judges are selected, not how they rule.  It is possible that the political leanings of judges before they took the bench tell us nothing about how they do their jobs.  But earlier research on the federal courts has found correlations between the political parties of the presidents who appoint judges and how those judges rule.

“The role of ideology increases as cases move up the judicial ladder,” said Lee Epstein, a law professor and political scientist at Washington University in St. Louis.  “That’s because the constraints on judicial discretion lessen as one moves up.” She and two co-authors — William M. Landes, an economist at the University of Chicago, and Judge Richard A. Posner of the federal appeals court in Chicago — documented the trend in a 2013 book, “The Behavior of Federal Judges.”

Comparing votes in the same set of cases heard at all three levels of the federal judiciary from 1995 to 2008, the book found that judges appointed to trial courts by Republican presidents were only slightly more likely to cast conservative votes than those appointed by Democrats.  But the disparity grew to almost 2-to-1 on the appeals courts and to 2.5-to-1 on the Supreme Court.

Professor Posner, who is Judge Posner’s son, said the new study made a particular contribution in assessing the political inclinations of the American Bar.  “It confirms,” he said, “what everybody always thought: that lawyers are to the left of other professions.”

Every subgroup of practicing lawyers examined by the study was more liberal than the general population. Public defenders and government lawyers generally were particularly liberal, as were women and the graduates of top law schools. But prosecutors and law firm partners were pretty liberal, too.

Law professors, too, are quite likely to lean left, a finding that matched those in earlier studies. Indeed, when Professor Posner and a colleague, Adam S. Chilton, tried to assess whether the liberal tilt of the legal academy affected its scholarship, they had a hard time finding law professors at the top 14 law schools who had contributed more to Republican candidates than to Democratic ones.

Why are judges different? After all, they, too, are a subset of a generally liberal legal culture. Professors Bonica and Sen said that conservatives had worked hard and effectively to ensure representation of their views on the courts. They have cultivated candidates for the bench, notably through the Federalist Society, the conservative legal group active on law school campuses. But if the numbers of conservative candidates remains small, they wrote, it makes strategic sense to deploy candidates on the courts that matter most. The study’s authors call this “strategic politicization.”

“The most conservative courts (and thus the least representative of the overall distribution of lawyers) are the federal courts of appeals, followed by the state high courts, the federal trial courts and state trial courts,” the study found....

There may be reasons besides politics for the overrepresentation of conservatives on the courts, at least as compared with the pool of lawyers.  Judges do tend to be older than the average lawyer, and older lawyers are more conservative than younger ones. Even so, the study found, judges are more conservative than other lawyers their age.

February 1, 2015 at 11:50 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "Why Judges [and criminal case decisions] Tilt to the Right":


No matter the ideology or political affiliation, lawyers on the bench will further the rent seeking interests of the profession.

I have repeatedly proposed making judging a separate profession. Mature people who have taken teh consequences of decision making would apply to a three year school, for example, responsible professionals or retired military. The first two years would consist of book learning. The primary message would be, apply the law, do not make the law. The third year would consist of judging miscellaneous case subjects, under supervision. The message would be work for your salary, do not spend entire days drinking coffee, and chatting up the secretaries. Do not spend an entire day on your personal Facebook account, and make people wait 4 years for your decisions.

Then a licensing exam as least as difficult as the one for cosmetology.

Only licensed judges could run for judge office or get appointed. The licensing board would be majority taxpayer, not judges, and would be in the Executive.

The Judiciary Act would be rewritten to allow inquisitions by judges, and their taking control of investigations as they see fit.

Posted by: Supremacy Claus | Feb 1, 2015 3:38:46 PM

Any theory that claims that judges should represent the population of lawyers completely ignores that judges are not supposed to serve the interests of the legal profession as such (uphold the dignity of the legal profession, sure, but that is something very different). I find the claim that judges should somehow march in lockstep with a self-selected minority while admitting that minority is an outlier from the total population more than just a little troubling.

Posted by: Soronel Haetir | Feb 1, 2015 11:09:56 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB