Who Is Winning in the Competition over Judicial Politics?

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From Harvard Gazette:

While U.S. Supreme Court opinions are routinely examined through the political lens of the court’s nine justices, far less is known about the ideological makeup of the thousands of judges on the nation’s federal and state benches.

Now, research from Maya Sen, an assistant professor of public policy with the Ash Center for Democratic Governance and Innovation at Harvard Kennedy School (HKS), and Adam Bonica, an assistant professor of political science at Stanford University, sheds some light on the opaque world of politics in the judiciary.

Through novel analysis using data from the Martindale-Hubbell (a comprehensive directory of nearly a million lawyers, judges, and law professors) and from Bonica’s Database on Ideology, Money in Politics, and Elections (which scores all individuals and organizations making campaign contributions to state and federal candidates between 1979 and 2012), Sen and Bonica contend in a new working paper that they’re able to measure the politics of judges and attorneys, quantifying what had been known only anecdotally, if at all.

Among the findings:

  • Attorneys as a group are “quite liberal” compared with the general U.S. population; judges, on the other hand, are more conservative than lawyers, despite being drawn exclusively from the existing attorney pool.
  • The median attorney’s politics most closely resemble those of New York Gov. Andrew Cuomo, a center-left Democrat, while the median judge on the U.S. Court of Appeals aligns with a center-right Republican like New Jersey Gov. Chris Christie.
  • In lower courts judges skew more liberal, but they trend increasingly conservative up the ranks of the judiciary to state supreme courts and the U.S. Court of Appeals.

“The higher or more politically important the court, the more conservative it is, especially when compared to the overall population of attorneys,” the paper concludes.

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What explains the predominance of conservatives on the elite courts? One factor, Sen said, is that conservative judicial candidates are often “strategically funneled” toward judgeships in the highest courts by politicians and organizations such as the Federalist Society, the influential conservative legal think tank founded in 1982 by law school students at Harvard, Yale, and the University of Chicago.

“The Federalist Society represents a coordinated strategy of retaining and fostering conservative talent at the upper echelons of legal academia — with an eye toward shaping important federal courts — the precise politicization that we consider here,” Sen and Bonica wrote. Their research says that graduates of 14 top law schools who go on to become judges are more conservative than their peers, especially at the levels of federal courts of appeals and state high courts.

Just as politicization is not felt equally across the court system, the level of polarization also ranges, the study says, with the U.S. Circuit Court of Appeals the most polarized and state lower courts the least.

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Entire article here. Pdf of paper here.

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