Protecting Agency Judges in an Age of Politicization: Evaluating Judicial Independence and Decisional Confidence in Administrative Adjudications

• DOI: 10.1177/0275074019829608
• Author: Daniel E. Chand
• Date: 01 May 2019
• Published date: 01 May 2019
• Subject Matter: Articles

https://doi.org/10.1177/0275074019829608

American Review of Public Administration

2019, Vol. 49(4) 395 –410

© The Author(s) 2019

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/0275074019829608

journals.sagepub.com/home/arp

Article

Introduction

The politicization of the public sector has been an exten-

sively explored topic within public administration for the last

decade (e.g., Craft & Howlett, 2013; Hustedt & Salomonsen,

2014; Moynihan & Roberts, 2010; Overeem, 2005; Peters &

Pierre, 2004). With a current presidential administration that

openly flaunts its desire to impose political loyalty over

administrative expertise, the value of having politically neu-

tral administrators is sure to become a subject of scholarly

scrutiny in the Trump era (Osnos, 2018). Yet, there remains a

certain civil servant whose substantial discretion and deci-

sion-making authority have escaped the examination of

politicization research. This influential, yet largely unexam-

ined, administrator is the administrative judge, who is a

highly unusual and important actor in the policy implemen-

tation process. Their dual role as both judge and civil servant

makes these individuals rather odd. They do not serve in a

separate branch of government, like their better known and

more frequently studied Article III judge counterparts.

Instead, they are part of the executive branch, serving in state

and federal agencies.

It is their oddity, as both judge and public administrator,

which makes administrative judges a prime target for those

who seek to politicize administrative functions. They are

judges, in both name and job function, adjudicating dis-

putes between agencies and individuals. Thus, the adminis-

trative judge is presumed to exercise judicial independence.

However, they are also employees of public agencies fall-

ing under the executive branch. In fact, some of these

administrative judges are often put in the precarious situa-

tion of presiding over cases involving their own coworkers

(Barnett, 2016). Thus, many critics of the administrative

adjudication process argue that there exists an inherent con-

flict of interest in such agency hearings (Eaglesham, 2015;

Morgenson, 2013). Furthermore, they are potentially sub-

ject to pressure from political actors in the policy process,

829608ARPXXX10.1177/0275074019829608The American Review of Public AdministrationChand

research-article2019

1Kent State University, OH, USA

Corresponding Author:

Daniel E. Chand, Kent State University, 302 Bowman Hall, Kent, OH

44242, USA.

Email: dchand@kent.edu

Protecting Agency Judges in an Age of

Politicization: Evaluating Judicial Independence

and Decisional Confidence in Administrative

Adjudications

Daniel E. Chand1

Abstract

Administrative judges, who serve in state and federal agencies, as opposed to a separate branch of government, are an

understudied, and occasionally controversial, type of public administrator. Many who find themselves in administrative courts

protest the agency judge’s lack of independence. According to critics, because agency judges are members of—and often

evaluated by—the very agency with a vested interest in the case, they are subject to political influence and cannot possibly

be an impartial arbitrator. In the United States, various approaches to addressing this concern have been employed. At

the federal level, Congress grants some administrative judges statutory protections from agency evaluation. Most states

have utilized an organizational independence approach by placing administrative judges in separate agencies dedicated to

administrative adjudications. Via a national survey returned by 250 agency judges, this study compares perceptions of judicial

independence and decisional confidence. It finds that administrative judges serving in independent agencies (known as central

panels) report higher levels of judicial independence and more confidence their rulings will not be overturned. The theoretical

implications are significant for public administration and administrative law scholars, especially those concerned about the

politicization of administrative duties.

Keywords

administrative law, administrative judges, politicization, immigration, social security

396 American Review of Public Administration 49(4)

such as the president, governors, members of the legisla-

ture, and appointed heads of agencies.

Recognizing this potential conflict of interest, policy

makers have employed various methods of protecting agency

judges from political influence. At the federal level, where

judges serve within in a specific agency tasked with imple-

menting the law, Congress has passed protections from

agency evaluation based on rulings for some, but not all,

administrative judges. This has resulted in a tiered system of

federal administrative judges. Some are protected by the

Administrative Procedure Act (APA), whereas others lack

these statutory protections from evaluation (Barnett, 2016;

Lubbers, 1996). Most states, however, have employed a

more far-reaching method of reform to shield administrative

judges from such complaints. These states utilize an organi-

zational independence approach by placing their administra-

tive judges in a separate state agency, referred to as a central

panel (Hardwicke, 2001).

What follows is an examination of administrative judges

at both the state and federal levels, specifically exploring the

judge’s perceptions of his or her judicial independence and

decisional confidence. Do factors such as the statutory pro-

tection from evaluation or organizational independence

effect how judges evaluate their own judicial independence

and confidence in their decisions being upheld? These ques-

tions are answered with a nationwide survey, sent to a vari-

ety of judges in federal agencies and state central panels.

Using a mix of statistical analyses of survey answers and

content analysis of written feedback from the judges, the

study yields both expected and surprising results. First, as

anticipated, state judges serving in independent central pan-

els report higher levels of judicial independence and deci-

sional confidence. Second, judges with statutory protections

from evaluation, federal APA judges, surprisingly report the

lowest levels of satisfaction with their independence and

confidence in their rulings. In fact, some non-APA judges

actually report significantly higher levels of satisfaction

with their independence. These findings are of particular

importance at a time of increased politicization of civil ser-

vant functions.

The next sections describe the evolving role of adminis-

trative judges in federal and state agencies over the last sev-

eral decades. There are discussions of how presidential

administrations have sought to exert political pressure on

federal agency judges by increasing their workload, limiting

or overturning decisions that run counter to political goals,

and even removing certain types of cases from specific

judges’ dockets. Later sections describe this study’s design

and sample, with details on the specific agencies surveyed. A

discussion of the analysis and implications for the findings

concludes the article. Given that administrative judges are

understudied actors in the policy process (Taratoot &

Howard, 2011), the findings here should inform the burgeon-

ing recent discussion of the proper method of conducting

agency adjudications.

Administrative Judges and Political

Neutrality

Agency adjudications are now a well-established part of the

policy implementation process. Indeed, for cases in which

the private interests involved are rather minor, adjudications

can be mundane informal affairs that do not even require in-

person hearings. However, when the stakes of a case are

much higher, for example, denial of disability benefits or

even removal from the country, the adjudication necessarily

takes the form of a traditional trial overseen by an agency

judge. Officially, the agency judge’s decision is only an “ini-

tial decision,” subject to review. In practice, however, the

vast majority of administrative judge decisions are final,

becoming the official ruling that affects the lives of residents

(Rich, 1984). A brief review of how the modern administra-

tive state developed, and the value of political neutrality it is

intended to uphold, helps explain why administrative judges

play such an integral role in policy implementation.

As any public administration graduate student could

explain, at the turn of the 20th century, prominent scholars

and practitioners made a concerted effort to separate politics

from administration, leading to the so-called politics–admin-

istration dichotomy (Wilson, 1887). It was against this back-

drop that the job of administrative judges slowly developed.

With the newly formed transnational railroad to regulate,

Congress created the Interstate Commerce Commission

(ICC) in 1887, which became the first regulatory commis-

sion exercising quasi-judicial authority. The ICC enforced

regulations on a case-by-case basis, careful to adhere to due

process protections imposed by the courts. Within a couple

of decades of the agency’s creation, the ICC’s “hearing

examiners” had professionalized into what were the precur-

sors for the modern administrative judge (Asimow, 2000).

On the heels of the New Deal and World War II, during the

growth of the modern administrative state, Congress passed

the landmark APA of 1946, spelling out the formal process

for agency adjudications and creating the “highly protected”

administrative law judge (ALJ; Asimow, 2000), referred to

by many administrative law scholars as “APA judges” (e.g.,

Arzt, 2002; Barnett, 2016; Fauver, 1973; Lubbers, 1996).1

In the second half of the 20th century, the idea of a poli-

tics–administration dichotomy came to be viewed as more

quaint than practical, as scholars began pointing to the often

complementary roles of politics and administration (e.g.,

Frederickson, & Smith, 2003). Still, there remained wide-

spread agreement on the value of having politically neutral

administrators. As Kaufman (1956) argued, the “quest for

neutral competence” from public administrators “has never

waned” (pp. 1060-1061). Indeed, political neutrality of

administrators implementing the law is still a “defining

characteristic” of public administration, held dearly even by

critics of the old dichotomy (Overeem, 2005). In developed

democracies, the public views politically neutral bureau-

cratic institutions more positively than partisan political