Studying Judges with Numbers

ARE JUDGES POLITICAL? AN EMPIRICAL ANALYSIS OF THE FEDERAL JUDICIARY, Brookings Institution Press, 2006

16 Pages Posted: 1 Aug 2011

See all articles by Cass R. Sunstein

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

David Schkade

University of California, San Diego

Lisa M. Ellman

affiliation not provided to SSRN

Andres Sawicki

University of Miami - School of Law

Date Written: June 8, 2006

Abstract

This is the first chapter of Are Judges Political? An Empirical Analysis of the Federal Judiciary. The book reports the results of a large-scale empirical study of judicial behavior on the federal appellate courts. There are three key findings. First, the political party of the president who appointed the judge matters - judges appointed by Republican presidents vote differently from Democratic appointees across a range of important cases. These are party effects. Second, even in hard cases, the law constrains judicial behavior - Republican and Democratic appointees tend to agree more often than they disagree. So although party effects exist, they do not fully determine judicial behavior. Finally, group dynamics are critical - a Democratic appointee sitting with two Republicans votes differently from a Democratic appointee sitting with two Democrats, and similar patterns hold for Republican appointees. We identify several group dynamics that affect the voting behavior of judges sitting on panels, including the collegial concurrence, group polarization, and the whistleblower effect. Moreover, panel effects are frequently as large as party effects. In other words, the party that appointed a judge is often no more predictive of that judge’s vote in a given case than the party that appointed the two other judges sitting on the same panel in that case. While this study cannot provide conclusive answers to contested questions regarding judicial behavior and the design of the federal courts, we hope that the data reported here can inform the resolution of those questions.

Keywords: judicial ideology, collegial concurrences

JEL Classification: K4

Suggested Citation

Sunstein, Cass R. and Schkade, David and Ellman, Lisa M. and Sawicki, Andres, Studying Judges with Numbers (June 8, 2006). ARE JUDGES POLITICAL? AN EMPIRICAL ANALYSIS OF THE FEDERAL JUDICIARY, Brookings Institution Press, 2006. Available at SSRN: https://ssrn.com/abstract=1899690

Cass R. Sunstein

Harvard Law School ( email )

1575 Massachusetts Ave
Areeda Hall 225
Cambridge, MA 02138
United States
617-496-2291 (Phone)

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

David Schkade

University of California, San Diego ( email )

Rady School of Management
9500 Gilman Drive
La Jolla, CA 92093
United States
858-822-5933 (Phone)

HOME PAGE: http://management.ucsd.edu/cms/showcontent.aspx?ContentID=89

Lisa M. Ellman

affiliation not provided to SSRN ( email )

Andres Sawicki (Contact Author)

University of Miami - School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States

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