Does Political Bias in the Judiciary Matter?: Implications of Judicial Bias Studies for Legal and Constitutional Reform

This issue attests to the increasing significance of the empirical study of judges and judicial decisions. The two new empirical articles are just the latest in a cataract of studies that show that the political biases of judges, and other legally irrelevant characteristics of judges (such as race and sex), influence the voting patterns of judges and the outcomes of cases. Thomas Miles and Cass Sunstein are right that this movement deserves a name, and “the New Legal Realism,” in its invocation of the aspirations (but not the actual research) of the original legal realists, is an apt one.

In the legal literature, perhaps more than in the political science literature, research into judicial behavior is justified by the dividends it pays for legal reform. And, indeed, many legal scholars who have written about judicial bias have proposed legal reforms that are designed to minimize it. Some reformers focus on the appointments process, arguing that elected officials should avoid appointing or confirming partisans. Critics of recent appointments to the federal judiciary urge the Senate to refuse to confirm nominees who lack substantial nonpolitical qualifications. Many states have gone further and limited the role of elected officials in appointing judges: nonpartisan commissions screen or nominate judges. Miles and Sunstein, following an earlier proposal made by Emerson Tiller and Frank Cross, argue that threejudge appellate panels should always have judges from both parties: even though the two judges from one party can outvote the third, the presence of a different perspective moderates the thinking of the majority. Max Schanzenbach and Emerson Tiller similarly argue that an ideologically diverse panel should review sentencing decisions of trial judges. Concerns about bias have also influenced debates about doctrine and judicial deference, with some scholars arguing that judges should take deferential stances toward agency regulations, legislation, or political-branch interpretations of the Constitution, because otherwise judges will just substitute their own political views for those of elected officials or more qualified appointees. More ambitiously, modifying judicial voting rules could reduce the influence of bias that infects judges’ efforts to apply deference rules. And fears about bias have played a role in recent proposals to eliminate life tenure on good behavior for federal judges and replace it with term limits. Many of these proposals seem sensible, but there are two problems, one normative and one empirical.