Ever since the Carter Administration began appointing female and minority judges in large numbers, scholars have sought to measure their impact. In this Article, I focus on a different, but equally important question: what is the background and ideology of female and minority judges and how has this changed over time? I address this issue empirically by analyzing quantitative data on United States district court judges from Presidents Lyndon Johnson through Barack Obama. My findings are twofold: First, I show that the professional and educational characteristics of female and minority judges have historically differed from those of white male judges, but these differences have narrowed over time, particularly when it comes to education. Second, I present evidence showing that, even though professional and educational differences have narrowed, female and minority judges still bring a different ideological viewpoint than do white male judges, being on average more left-leaning in their ideology. These findings reframe existing discussions about descriptive representation in the courts and suggest that female and minority judges more than ever tend to share professional and educational backgrounds with white or male judges, but still bring a different, albeit more liberal, perspective.
What predicts attempts at judicial reform? We develop a broad, generalizable framework that both explains and predicts attempts at judicial reform. Specifically, we explore the political tug of war created by the polarization between the bar and political actors, in tandem with existing judicial selection mechanisms. The more liberal the bar and the more conservative political actors, the greater the incentive political actors will have to introduce ideology into judicial selection. (And, vice versa, the more conservative the bar and the more liberal political actors, the greater incentive political actors will have to introduce ideology into judicial selection.) Understanding this dynamic, we argue, is key to both explaining and predicting attempts at judicial reform. For example, under most ideological configurations, conservatives will, depending on how liberal they perceive the bar to be, push reform efforts toward partisan elections and executive appointments, while liberals will work to maintain merit-oriented commissions. We explore the contours of this predictive framework with three in-depth, illustrative case studies: Florida in 2001, Kansas in the 2010s, and North Carolina in 2016.
We present a new measure of judicial ideology based on judicial hiring behavior. Specifically, we utilize the ideology of the law clerks hired by federal judges to estimate the ideology of the judges themselves. These Clerk-Based Ideology (CBI) scores complement existing measures of judicial ideology in several ways. First, CBI scores can be estimated for judges across the federal judicial hierarchy. Second, CBI scores can capture temporal changes in ideology. Third, CBI scores avoid case selection and strategic behavior concerns that plague existing vote-based measures. We illustrate the promise of CBI scores through a number of applications.
We study the political ideology of judicial law clerks in the United States, by constructing a novel dataset that combines information on the identity of clerks with a measure of political ideology based on political donations. We then use this data to empirically investigate several important questions about the ideologies of clerks. First, we examine whether clerks tend to share the liberal ideology of other lawyers or the more conservative ideology associated with federal judges and find that clerks tend to be disproportionately liberal. Second, we investigate how the ideology of clerks compares to the ideology of lawyers and find that liberal lawyers are more likely to have clerked than conservatives. Third, we assess whether the ideology of clerks differs based on the level of clerkship and find that the liberal skew becomes less pronounced as the prestige of the clerkship increases. Fourth, we analyze how ideology influences the hiring of clerks and find that the ideology of judges is strongly correlated with the ideology of their clerks.
We extend the scaling methodology previously used in Bonica (2014) to jointly scale the American federal judiciary and legal profession in a common-space with other political actors. The end result is the first data set of consistently measured ideological scores across all tiers of the federal judiciary and the legal profession, including 840 federal judges and 380,307 attorneys. To illustrate these measures, we present two examples involving the U.S. Supreme Court. These data open up significant areas of scholarly inquiry.
How do Americans evaluate potential U.S. Supreme Court candidates? Using a novel, two-part conjoint experiment, I show that respondents put high importance on the political leanings of potential Court candidates, a finding in contrast with the scholarly view that the public views the Court as different from other, more political institutions. Indeed, when respondents are given information about a nominee’s partisan leanings they rely extensively on that information in de- ciding whether to support the candidate, whether they trust the candidate, and whether they find the candidate qualified. By contrast, when partisan information is withheld, respondents appear to use other kinds of signals, such as race, in order to fill in the gaps. Those who are most knowledgeable about the Court are most influenced by these partisan signals, providing further support for the importance of political heuristics. The results suggest that the public’s evaluation of judicial nominees is more in line with how it evaluates other political actors. They also suggest that even candidates with excellent qualifications need not garner bipartisan public support.
Using a new dataset capturing the ideological positioning of nearly half a million U.S. judges and lawyers, we present evidence showing how ideology affects the selection of judges across federal and state judiciaries. We document that the higher the court, the more it deviates ideologically from the ideology of attorneys, suggesting ideology plays a strong role in judicial selection. We also show ideology plays stronger roles in jurisdictions where judges are selected via political appointments or partisan elections. Our findings suggest that ideology is an important component of judicial selection primarily where (1) using ideology leads to expected benefits to politicians, (2) when the jurisdiction's selection process allows ideology to be used, and (3) where it concerns the most important courts. The study is the first to provide a direct ideological comparison across judicial tiers and between judges and lawyers and to explain how and why American courts become politicized.
Judicial nominees to federal courts rarely reveal their genuine views on controversial issues. As a result, political actors---and especially the Senate---often have only partial information about how a nominee would vote on issues likely to come before the courts. We formulate a model that departs from the previous literature by incorporating this type of uncertainty into the nominations process. Our model shows that the absence of such information can yield suboptimal outcomes. In particular, when the President and Senate are ideologically divergent, low information about nominees' views results in the Senate occasionally rejecting acceptable nominees. Thus, even though low information allows the President to ``sneak in" more extreme candidates, it leads to both the President and the Senate being worse off than they would be with more transparency. Under such conditions, more information weakly increases both sides' welfare. Our results therefore raise questions about why nominees are permitted to keep important views private.