Do judges allow their political views to affect how they decide cases? The answer seems to be “yes.” Empirical studies show that Republican judges favor employers against employees and unions, businesses against regulatory agencies, and prosecutors against criminal defendants, while Democratic judges do the opposite. The federal system seems to invite such behavior, with its partisan appointments process and lifetime tenure that protects judges from retaliation. State electoral systems would also seem to reward partisan judicial candidates. Scholars worried about judicial bias have proposed numerous reforms, including:
- More serious Senate involvement in federal appointments, and abolition of judicial elections in states
- Term limits in place of lifetime tenure
- Greater judicial deference to the judgments of legislatures and agencies
- Mandatory bipartisan appellate panels
All of these proposals assume that more “neutral” judges are better or that if reducing the political bias of judges is impossible, then their role should be limited. But there is an alternative view. Judges have legislative power in our system, and, like legislators, ought to make political judgments. If the judiciary is ideologically diverse, the ex ante effect of biased judging on legislation should be politically neutral; and even if it is not, the main effect should be to ensure that legislation is socially beneficial, as legislators will need to be careful about enacting laws that injure the constituency of opposite-party judges. This is not the whole story, of course, and there are cross-cutting considerations. But the case for reform turns out to be more complicated than it first appears. For the whole story, go here.