Judges and Politics

...He is probably one of the tiny minority who would genuinely prefer a diverse judiciary to one dominated by people like himself...

...Such inquiries invite a limited measure of subjectivity into adjudication...

...In short, Sunstein has framed his data to portray an ideologically riven judiciary whose gulf is breached chiefly by judges' infidelity to their own convictions in the face of social pressures...

...Yet the first striking feature of Sun-stein's underlying paper is how unper-vasive its inquiry is...

...In the other direction, however, Sunstein and company hypothesize an ideological effect with respect to contract-clause litigation...

...The details, methodology, and data with which Sunstein backs these arresting and depressing claims appear nowhere in the book...

...Indeed, if the parties take Sunstein's argument to heart, every nominee of the other side would be seen as increasing the likelihood of politically unacceptable results across a wide range of cases...

...Sunstein argues that judges' ideology (for which party identification serves as a crude but realistic proxy) matters—a lot...

...most original-tex-tualists and devotees of the law-and-economics school are conservatives, while believers in a flexible, "living" Constitution tend to be liberals...

...Moreover, important areas of law sometimes call for a measure of judgment: asking judges in regulatory cases, for example, whether a federal agency's reading of a statute is "reasonable" or whether its actions are "arbitrary and capricious...

...That, of course, may not matter if you're, say, an environmental lawyer who cares particularly deeply about one of the areas in which the data seem to show a real effect...

...With few exceptions it contains scant evidence of judges ruling according to principle...

...He recently wrote—along with scholar and waiting-to-be-confirmed Justice Department official Jack Goldsmith—an excellent article on the history of media reaction to military tribunals...

...Sunstein is careful to frame his argument in politically neutral terms: a call for ideological balance, not for Democratic supremacy, on the courts...

...In other words, judges' ideology influences not only how those judges vote but how their colleagues vote...

...As the paper acknowledges, critical areas of the law do not reveal ideological voting at all...

...And it's in between when they're two-to-one on either side...

...In other words, Sunstein would give up on the idea that law is supposed to be an apolitical discipline in which practitioners put aside their political beliefs...

...This is a simplistic but not wholly inaccurate summary of Sunstein's work...

...Yet neither party, in fact, would stop at mere balance...

...On the other side, a judge of that court, Harry Edwards, has cited the low rate of D.C...

...After watching the collapse of totalitarian regimes left brittle by the paucity of ideas they tolerated, how many Americans need a book-length explication of why dissent is—in addition to being an inalienable right—a healthy habit for societies to cultivate...

...Indeed, if Sunstein looked carefully at his own profession, he might notice that his current vision—which dismisses as passe the insistence that the rule of law must transcend politics—is part of today's social and intellectual "cascade...

...Scholars have sought to demonstrate this before, though few quite as ambitiously...

...Even within that chapter Sunstein's portrayal of the judiciary as riven by politics is subordinate to his claim that judges—like the rest of us—don't think for themselves very much...

...In addition, certain methodologies of judicial decision-making tend to be associated with political movements...

...If Sunstein is right, the rule of law is in for a big hit...

...The belief that "judges are not policymakers" is a "myth...

...From these striking empirical claims, Sunstein reaches several conclusions with vast importance...

...His sophistication and open-mindedness notwithstanding, his chapter about judges reflects precisely the sort of conformity to group thinking that his book was written to warn against...

...But we know...

...Yet his data are more consistent with what the naive person who still believes in the rule of law would have guessed: Most judges are trying to put their views aside and apply the law, and much of the time, there is no reason to doubt their success...

...When judges err, their personal views matter enormously...

...Only in a deeply cynical age would a distinguished professor of law choose to see in this picture evidence of a judiciary whose overweening politics is tempered only by its sheep-like conformism...

...When they are all Republican panels, industry is proved 80 percent of the time...

...Various professors—most notably Richard Revesz, dean of New York University's law school—have sought to demonstrate statistically that D.C...

...And he suggests that the chief judges of appeals courts "should generally try to ensure that every panel has judges from different parties and that few panels are all-Republican or all-Democratic...

...Finally, there are judges of both parties who fail scrupulously to follow the law and impose their own policy preferences instead...

...In summarizing his findings, he often uses phrases like "in ideologically contested cases" or "in controversial areas...

...The finding with respect to criminal law (where many people imagine Republicans to be tougher on crime and Democrats more solicitous of the rights of the accused) is particularly remarkable, especially since criminal cases represent the largest area the study examines...

...Indeed, the claim that America's judges are conformists is the chapter's central point: A Republican appeals-court judge sitting with two Democratic judges is likely to vote like the Democrats (and vice versa), while a panel composed of three judges of the same party will tend toward greater ideological extremism than its constituent members might believe individually...

...has put together some pretty striking numbers that he will be publishing soon, Benjamin Wittes is an editorial writer for the Washington Post...

...Moreover, Sunstein and his coauthors found "nearly statistically significant evidence of ideological voting" in race-discrimination cases—which is to say that they did not find statistically significant evidence of it...

...After all, its title, Why Societies Need Dissent, assumes a question that this country answered long ago...

...In some respects, Sunstein is an odd entrant into this dispute, for his own work often transcends ideology...

...So maybe he will smile with satisfaction when he reads the following words: I respectfully dissent...

...For a while now, a debate has bubbled along in law reviews concerning "ideological voting...

...judges are not quite as divided as Sun-stein makes out...

...According to Sunstein, judges are divided by party—but they are unified in their conformity...

...But error and abuse are not the norm, and there is a vast center in the judiciary composed of able lower-court judges, of both parties, who do not profess great methodological divisions and who are committed to applying precedent faithfully...

...To be fair, Sunstein approaches the ideological voting debate only glanc-ingly...

...The attempt to validate this claim empirically is not Sunstein's innovation...

...The study looks at ideological voting only in those limited areas in which the authors most expect it to occur...

...That would be law-school professors, who have, with almost incomprehensible consistency in recent years, lined up to provide intellectual arguments for current political battles...

...Vast areas of the law—torts, non-environmental regulatory challenges, labor-management litigation, etc.—are not examined...

...Yet as soon as that expectation disappears, and judges imagine themselves as filling the Republican or Democratic slot on a panel, or know in their hearts that they were confirmed because of their political views, then their politics will become manifest across the array of areas in which liberals and conservatives in fact disagree...

...Fortunately, however, he has dramatically overstated the case...

...Sunstein's data are genuinely illuminating concerning the role of social influences in judging—his main point...

...In order to subscribe to this idea, you have to believe that Democrats and Republicans among the center group of judges behave in dramatically different ways...

...And while in certain case areas the effect is more dramatic—affirmative action, abortion, and campaign finance, for example— two-thirds of the cases in areas showing statistically significant ideological voting fall into only two categories: sex discrimination and disabilities litigation...

...but he has allowed us to give everyone a sneak peek at today...

...And a close examination of this paper—written with statistician David Schkade and law student Lisa Michelle Ellman—reveals just what a shame it is that Sunstein's book does not give a more in-depth account...

...Judges and Politics Cass Sunstein gets it wrong By BENJAMIN WITTES You might not expect Cass Sunstein's new book to challenge America's mainstream view of judicial selection and partisan politics...

...Sunstein's larger argument is a meandering, sometimes appealing, rumination on conformity and dissent in society generally...

...Sunstein's study also has some troubling flaws...

...In the long run, we get the courts we imagine we have...

...A respected and sometimes brilliant law professor at the University of Chicago, Sunstein has conducted a study of judicial behavior, and his claims are becoming part of the justification for blocking judges like Estrada, who recently withdrew following a lengthy filibuster...

...Obvious though much of the book is, one section was playing a role in judicial confirmations a year before the book was even published...

...Only if you imagine grave and pervasive divisions on matters of deep principle being shunted aside by social pressures do these sorts of social influences seem especially remarkable...

...Yet Sunstein has always had a blind spot when he approaches politics, and this blind spot is very much on display in his current work...

...Indeed he has little patience for concerns about politicizing the judiciary: "The evidence," he writes, "demonstrates that the judiciary is already politicized...

...But he doesn't exactly highlight the point either...

...Rather, properly understood, they paint a different and far more predictable picture...

...They do this partly to protect the rights of dissenters, but mostly to protect interests of their own...

...Like everyone else, they magnify their ideological differences when grouped with like-minded colleagues and conform when among their ideological foes...

...Specifically, the study looks at abortion, affirmative action, campaign finance, capital appeals, commerce-clause cases, contracts-clause cases, criminal appeals, cases under the Americans With Disabilities Act, industry challenges to environmental regulations, individual efforts to "pierce the corporate veil," race and sex discrimination, and claims of unlawful "takings" of private property...

...Yet even as Sun-stein urges a dramatic, overt politiciza-tion of the judiciary, he nowhere pauses to mention that in crucial areas the ideological-voting thesis is contradicted by his own data...

...And just as often he uses phrases like "much of the time" or "in many areas"—which cumulatively create an impression that ideological voting is pervasive...

...They do this because of a conservative academic literature that has argued for greater judicial protection of contracts...

...In three important areas, ideology does not predict judicial votes"—namely, "criminal appeals, takings claims, and commerce clause challenges to congressional enactments...

...From President Clinton's impeachment to Bush v. Gore, there has been hardly an argument too weak or too legally illiterate to keep professors from signing on—and all in service of politics, following one another like lemmings, ignoring opposing voices, and amidst their self-made cacophony of sameness, going to extremes...

...There is a group that actually does manifest Sunstein's theory about con-formity—a group among which, I suspect, his hypotheses would be validated far more convincingly than among judges...

...Well-functioning societies," he concludes, "take steps to discourage conformity and to promote dissent...

...when they're all Democratic panels, 20 percent of the time...

...At Miguel Estrada's confirmation hearing to be a judge on the D.C...

...And then they count this small number of contracts cases as evidence of ideological voting—even though the ideological lineup was precisely the opposite of the one they expected...

...If every judge were simply reading the law, following the law, you would not get this kind of disparity...

...Circuit administrative-law decisions are highly influenced by ideology...

...Their political commitments very much influence their votes...

...One of these, in any event, is reasonable enough: A certain ideological diversity on appeals courts is critical to ensuring that they do not become ideologically blinded in any particular direction...

...It is hardly surprising that judges, working together on courts over long periods of time, would come to learn from one another or persuade one another of certain ideas...

...Of the nine case areas in which they did, in fact, report statistically significant evidence of ideological division, only two involved samples of more than 200 cases (criminal appeals involved a sample of over 1,100 cases...

...And this dramatic reading of the data is dead wrong...

...There is only power, and Republicans should oppose the Democrats' judicial appointments, while Democrats should oppose Republicans...

...These actually cut in both directions...

...So, for example, Sunstein and his coauthors find no evidence of ideological voting in takings cases, but they don't examine the Federal Circuit, which hears the most interesting and difficult of such cases...

...The study does not pretend to examine ideology in appellate judging in general, only in "a subset of possible case types" involving "a number of controversial issues that seemed especially likely to reveal divisions between Republican and Democratic appointees...

...his discussion is a single chapter in a larger work...

...But the notion of social influence in judging is not especially menacing—or even sur-prising—except against the backdrop of an ideologically riven judiciary...

...But for a member of the general public interested in whether there is really an apolitical forum for adjudication of legal disputes, there is a world of difference between a judiciary divided politically in general and one where political differences show up in certain discrete areas...

...Nor should it come as a shock that they frequently compromise with one another and make accommodations to enable a colleague to sign an opinion...

...But in support of diversity—which is traditionally guaranteed by the fact that the presidency, and its power to name judges, periodically switches hands— Sunstein would have the Senate "consider the general approach and likely pattern of votes of presidential nominees...

...And yet, it would be a mistake to dismiss Sunstein's Why Societies Need Dissent as pious, worthy, and unnecessary for us to read...

...Nobody doubts that, in some sense, judges' philosophical and political views play a role...

...People are highly vulnerable to intellectual conformity, particularly within groups to which they are bonded by social ties...

...In other words, even in ideologically divisive areas, the finding of ideological voting is rather contained...

...Sunstein does not misrepresent this in Why Societies Need Dissent...

...Circuit dissents in arguing that collegiality, not ideology, is the dominant feature of appellate decision-making...

...A reasonable reader might ask how judicial votes can meaningfully be called ideological if they invert the judges' ostensible ideologies...

...There are, to start, a small number of hot-button areas where liberals and conservatives tend to have fundamentally different understandings of the Constitution...

...The belief that the courts are greatly politicized is a self-fulfilling prophecy...

...If Sunstein is right, what law professors used to call admiringly "the law" does not exist...

...We don't like to admit it, but it's true that ideology plays a role in this court...

...Indeed, he claims, ideological voting is rampant "in many controversial areas of the law...

...Judging criminal cases, unlike considering abortion or campaign-finance challenges, is a substantial part of what the courts do...

...This all seems more or less right, if less than a revelation...

...My impression is that he is correct that ideologically uniform panels tend to go off the rails more than others...

...The notion that drives the judicial-nomination wars is that "ideology" matters enormously—so much that the damage caused by habitual opposition is a price worth paying to limit the appointments the other party gets to make...

...In fact, the aggregate ideological effect Sunstein and his coauthors show is quite modest: Democratic judges cast stereotypically liberal votes about 13 percent more of the time than Republicans in the examined areas...

...In short, "judges are subject to conformity pressures, and like-minded judges go to extremes, in the sense that ideological predispositions are heightened when judges are sitting with others who were appointed by presidents of the same political party...

...To what extent, for example, the Fourteenth Amendment tolerates racial discrimination by the government in order to help traditionally disadvantaged minorities is one such area...

...But Sunstein then goes an extra step and argues that judges are no different—however much they are supposed to rule according to principle based on genuine expertise in a highly technical discipline...

...The data on which he bases his claims, which seem flawed on their own terms in important respects, do not in any event support his summary in Why Societies Need Dissent...

...The chapter is rife with data suggesting, as Schumer claimed at Estrada's hearing, that the likelihood of a stereotypically liberal result is directly proportional to the number of Democrats on a panel, and the likelihood of a stereotypically conservative result is proportional to the number of Republicans...

...They do, however, appear in the as-yet unpublished "Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation" (available online at www.aei-brookings.org...

...A judiciary working toward consensus and seeking unanimity is, generally speaking, a good thing...

...Circuit Court of Appeals, Senator Charles Schumer—one of the nominee's fiercest opponents—offered the following distillation of the data summarized in what is now the eighth chapter: Professor Cass Sunstein...

...Yet even assuming the most dramatic reading of his data, ideology can only be said to pervade those areas of law—most involving relatively small numbers of cases—preselected for a hypothesized propensity towards partisan division...

...But this must not be confused with the normative claim that the ideal is wrong and that ideology is all there is...

...When you look, say, at the environment cases where industry is challenging pro-environmental rulings, you get some pretty clear results...

...He energetically went to bat for President Bush's nominee to the Tenth Circuit Court of Appeals, Michael McConnell...

...Of course, they may fall short in certain isolated hot-button areas where deeply held beliefs—generally combined with open or particularly difficult legal questions—sometimes overcome their capacity to perform their duties dispassionately...

...Most of it is a journey through several decades of social science suggesting that people will believe just about anything if their peers do...

...The judiciary Sunstein contemplates would have Democratic and Republican caucuses...

...For the story turns out to be complicated...

...some tend to augment the ideological effect, while others diminish it...

...And I have no reason to doubt his sincerity in that regard...

...But Sunstein's argument is particularly suited to the current wars over judicial nominations because of a clever wrinkle in the way his data portray the relation between judging and ideology...

...Groups of like-minded people tend to go to extremes, Sunstein argues, and ideas frequently get adopted in what he calls "cascades"—the sudden social sweep with which an idea becomes ubiquitous across a seemingly uncritical public...

...it's obvious...

...The only thing that prevents ideological division on courts from becoming as endemic as Sunstein and Schumer imagine is the civic expectation that judges will behave like judges—an expectation that still creates a certain shame in jurists when they are tempted to behave like politicians...

...And his work on administrative law has been very useful...

...But instead of finding Republicans stronger than Democrats on contract enforcement, they find a mild effect in the other direction...