The Politics Of Judges

by Stuart Shapiro

Do judges make decisions based on their ideological preferences (the realist view) or do they merely interpret the law (the legalist view)?  In a new book, Richard Posner, Lee Epstein, and William Landes use data on thousands of court decisions to try and answer the question once and for all.  Cass Sunstein discusses their findings:

The authors’ (scientific) conclusion is that the legalists and the realists are both wrong. The truth lies somewhere in between. That is usually a pretty boring conclusion, but it is where the truth turns out to be. Epstein, Landes, and Posner offer some interesting answers to the question, “Exactly where in between?” They also show that the role of judicial ideology gets a lot bigger as we move up the judicial hierarchy. On the Supreme Court, voting is pretty political; on the district courts, politics turns out to be just about irrelevant. This finding has a concrete implication. In the confirmation process, the Senate sometimes fusses a lot over the political views of district court nominees, but usually it shouldn’t: for the district courts, the legalist view is essentially correct.

In practical terms this means that when we spend six months debating a Supreme Court nomination it is usually worthwhile.  When the Senate holds up lower court nominees, like they have been doing for the past several years, all they are doing is crippling the judicial system for little reason.

By: Stuart Shapiro

Stuart is a professor and the Director of the Public Policy
program at the Bloustein School of Planning and Public Policy at Rutgers
University. He teaches economics and cost-benefit analysis and studies
regulation in the United States at both the federal and state levels.
Prior to coming to Rutgers, Stuart worked for five years at the Office
of Management and Budget in Washington under Presidents Clinton and
George W. Bush.