Book Review: Sunstein, C. R., Schkade, D., Ellman, L. M., & Sawicki, A. (2006). Are Judges Political? An Empirical Analysis of the Federal Judiciary. Washington, DC: Brookings Institution Press. 177 pp

• Author: Willard M. Oliver
• DOI: 10.1177/0734016808328808
• Published date: 01 September 2009
• Date: 01 September 2009

Sunstein, C. R., Schkade, D., Ellman, L. M., & Sawicki, A. (2006).

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

Washington, DC: Brookings Institution Press. 177 pp.

DOI: 10.1177/0734016808328808

When discussing the relationship between judges and politics there seems to be somewhat of an

existing paradox. On the one hand, students are taught and many people believe that judges are

guided solely by the law and that politics never enters into their decision-making process. On the

other hand, present-day journalism presents judges as being entirely driven by their political ideol-

ogies such that they ‘‘legislate from the bench.’’ One suspects that the truth lies somewhere in the

middle. Thus, it is the question written within the title of their book, Are Judges Political?, that Sun-

stein, Schkade, Ellman, and Sawicki attempt to answer through an empirical analysis of the federal

judiciary.

Their findings, however, do not support a simple answer. Rather, they have noted that there is an

interesting dynamic at work. They find that when the law is very clear on how judges should decide,

judges do in fact follow the law and not their political ideologies. However, when the law is unclear

or there is in fact little to no law to follow, political ideology plays a role in the decision-making

process.

The authors look primarily at the U.S Court of Appeals, between 1995 and 2004, analyzing the

6,408 published (and only published) three-judge panel decisions and the 19,244 associated votes of

the individual judges. These cases covered a number of different areas of law in their study, includ-

ing abortion, affirmative action, capital punishment, criminal appeals, disability discrimination,

obscenity, race discrimination, and sexual harassment. They test three hypotheses in their study. The

first is a straightforward ideological voting, which states that a judge’s ideological tendency can be

predicted by the party of the appointing president. Second, there is the hypothesis of ideological

dampening, which posits that a judge is less likely to vote with his or her ideological alignment when

the other two judges are of the opposite party. The third hypothesis is just the opposite, ideological

amplification, which posits that a judge is more likely to vote with his or her ideology when the other

two judges are of the same party.

The study found support for all three hypotheses. In the aggregate, the political party of the

appointing president is a good predictor of how an individual judge will vote. They also found that

in terms of ideological dampening and amplification (panel effects) Democratic appointees were

more susceptible to these effects than Republican appointees. The authors did find some exceptions,

however, to these blanket findings. In five areas, ideology was not a predictor of judicial votes, those

being cases involving criminal appeals, taking claims, challenges to punitive damage awards, stand-

ing to sue, and Commerce Clause challenges. Moreover, there were two areas where judges were in

no way affected by panel effects, and these were the issues of abortion and capital punishment. In

these two areas, judicial decision making is totally ideologically driven.

To explain their findings, the authors first looked to the cases of nonideological voting where

there were no party effects and no panel effects. The authors offer two explanations; one is that the

law is clearly binding in a particular area, and two, there is simply bipartisan consensus on the issue.

Where there were party effects but not panel effects, they conclude that in those cases (abortion and

capital punishment), party affiliation matters. Finally, in those cases with panel effects, they offer

three explanations. The first is that judges are willing to offer a collegial concurrence in a case. When

the lone Democratic appointee is sitting with two Republicans, or vice versa, they are willing to bend

their ideological perspective either because an opposition colleague provides an important piece of

information regarding the case or because giving a dissenting opinion would not matter when the two

members of the opposition party are clearly going to vote for ideological purposes. Why waste a

Book Reviews363