Political Bias in the Judiciary: Does It Matter?

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.

Comments

[greenfrog]

Ex ante effects of biased judging are not neutral. If biased judging is taking legislative language and shading it in one direction or the other, then the effect is to increase the ex ante range of randomness for predicted outcomes. That makes future prediction less precise, decreasing certainty almost always increases risks without increasing return profiles.

Neutrality is better.

But maybe impossible.

[Samuel Myler]

Interesting article.

If a legislature is unwilling or unable to create a statute that has the requisite specificity or inclusiveness, does that legislature then defer law making power to the judiciary by virtue of this?

Is the vagueness of the statute as much a part of the statute as the words it contains?

[Henry Clay]

The entire premise is odd and sloppy. A judge can rule against employers without being "biased " against them. He can believe the statute requires the result because Congress created background rules of construction in favor or employees in ambiguous areas. That a Republican appointee might be more textualist doesn't make him "biased" either. It is fine to say that judges bring a. judicial philosophy to the table that tends to create certain results but to just look at who-wins-who-loses seems a reckless way to go about it.

If a Dem appointee has said "I don't like employers and I'm going to help unions" then that's evidence, but a merely liberal approach to, say, pleading doesn't mean there's "bias" - just that fact disputes should be resolved in court and not at MTD or SJ.

Moreover it insults our public servants and undermines faith in the rule of law to accuse them of being "biased" -- a term that citizens would abhor -- without being able to prove it in an individual case. You say "bias" when you mean somebody has animus towards a party or a predisposition to rule against the party because of who he *is.* But that's not what the claim is here. It's like saying disparate impact proves animus and "bias" by an employer when all it shows is a hiring policy has a disparate impact (and then we decide what to do about it). So, again, there's a problem here that precedes all the counterintuitive ivory tower talk that follows. -- Henry

[FrankMCook]

Bias may not be the right word to be using as it suggests something improper is going on, but mostly this is the result of a blinding flash of the obvious. The only hard question here is the chicken and the egg question: do some judges favor business over labor because they are Republicans, or did they choose to join the Republican party because they preferred business over labor? It should come as no surprise that judges appointed by a political process share the philosophy and goals of the party that appointed them. That after all is exactly what the appointment process was designed to accomplish.

[George M Weinert V]

This is of course the reason why we need to elect/appoint MANY MORE REPUBLICAN JUDGES!

God Bless America,
George M Weinert V

[Kimball Corson]

Is a neutrally made mistaken ruling better that a politically biased one? Perhaps not. However, when many same-way biased rulings are aggregated, it does begin to matter. Systemic bias then arises and gets build into the landscape. Those of different political persuasions are commensuately oppressed and victimized.

To G.M. Weinert: God's general blessing is not going to change this situation and it may even worsen it. Delusions can have a big impact.