April 1, 2004
Vol. 23 No. 13

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    Law students to help Sunstein track federal judges’ voting

    By Peter Schuler
    News Office

    Cass Sunstein

    The Law School has launched the Chicago Judges Project, a large-scale study of the voting behavior of federal judges, as one of a series of new Chicago Policy Initiatives.

    Cass Sunstein, the Karl N. Llewellyn Distinguished Service Professor in the Law School, will lead the effort, with the aim, Sunstein said, “of learning for the first time whether and how the political party of the appointing president is a good predictor of judicial votes. We are also interested in seeing how judicial votes are affected by other members on the panel—in testing, for example, whether Democratic appointees get more extreme when they are sitting with fellow Democrats.

    “We are assembling a team of second- and third-year law students whose work, initially at least, will consist of counting judges’ votes,” Sunstein explained. The project team, which also includes collaborator David Schkade from the University of Texas, will examine how Republican appointees and Democratic appointees have voted on cases involving critical legal and public policy issues, such as abortion, affirmative action, labor unions, campaign finance, sex discrimination, environmental regulations, property rights, school desegregation and crime. Subsequent work will explore the causes and implications of their findings for the composition of the judiciary, the confirmation process and the theory of legal reasoning.

    Sunstein said the United States for many decades has conducted “an extraordinary, natural experiment” on the performance of federal judges: randomly assigned, three-judge panels on federal courts of appeals produce extensive evidence of the effect of judicial ideology on judges’ votes.

    The project will explore whether Republican and Democratic appointees vote differently from each other, and if they differ, when do they differ and how do they differ? Sunstein said the Chicago Judges Project will shed light on whether Democratic appointees show especially liberal voting patterns when they are sitting with Democratic appointees, and conversely, whether Republican appointees are especially conservative when sitting with fellow Republicans.

    The Chicago Judges Project continues preliminary research Sunstein and two law students began in 2003. “Taken as a whole,” Sunstein said, “the evidence thus far suggests that the composition of the three-judge panels has a strong effect on likely outcomes, and this effect can create extremely serious problems for the rule of law.” In other words, Sunstein said, Republicans produce highly conservative rulings when sitting with Republicans, and Democrats become very liberal when sitting with Democrats. He noted that judges frequently issue “collegial concurrences” produced by the unanimous views of other judges on the panels, and that judges are subject to group polarization, by which groups of like-minded people go to extremes.

    “If the political party of the appointing president is treated as a rough proxy for ideology,” Sunstein explained, “then it becomes possible to test three hypotheses. The first is that an appellate judge’s votes in ideologically contested areas can be predicted by the party of the appointing president. Another hypothesis is that a judge’s ideological tendency will be amplified if the three-judge panel has two other judges appointed by an appointing president of the same political party. Finally, we want to test whether a judge’s ideological tendency will be dampened if the panel has no other judge appointed by a president of the same party.”

    In most areas, involving for example environmental protection and civil rights, all three hypotheses are confirmed. But in the areas of abortion and capital punishment, the findings thus far confirm the first hypothesis that links a judge’s decisions to the appointing president, but the latter two hypotheses do not apply because judges tend to vote their convictions on these issues and are not affected by the panel’s composition.

    Sunstein said that one of the notable findings thus far has been that none of the three hypotheses appears relevant to decisions involving federalism, criminal appeals and takings of private property, because in these cases, Republican and Democratic appointees vote essentially alike.

    Sunstein said the Chicago Judges Project will provide hard data to prove or disprove some of the accepted wisdom about how political ideology and judicial decisions are related. “Many people believe that political ideology should not and generally does not affect legal judgments, and this belief contains some truth,” Sunstein said.

    “Frequently the law is clear and judges should and will simply implement it, whatever their political commitments. But what happens when the law is unclear? What role does ideology play then?”