New Paper Explores Partisan Incentives to Politicize the Judiciary

February 1, 2015
New Paper Explores Partisan Incentives to Politicize the Judiciary

Cambridge, Mass. – A Harvard Kennedy School (HKS) Faculty Research Working Paper examining the politicization of the American judiciary finds that the higher the court, the more conservative and polarized it becomes. The paper’s authors, HKS Assistant Professor of Public Policy Maya Sen and Stanford University Assistant Professor of Political Science Adam Bonica, employed an original set of data largely derived from campaign contributions that captures the ideological positioning of nearly every U.S. judge and lawyer.

Though many observers accept that increased politicization and polarization are prevalent throughout the courts today, few studies have examined these issues across various tiers of the judiciary. “The Politics of Selecting the Bench from the Bar: The Legal Profession and Partisan Incentives to Politicize the Judiciary” studies levels of politicization throughout those tiers by harnessing what the paper’s authors argue represent “the first comprehensive, consistently measured data that capture the ideologies of judges without relying on the identities of appointing political actors.”

By scrutinizing the campaign contributions of the nearly 400,000 attorneys in the U.S., the paper’s authors conclude that “judges as a whole are more conservative than the population of attorneys. This is particularly the case among judges who sit in higher, more politically important courts – such as state high courts and the U.S. Courts of Appeals.” Conversely, the authors also find that lawyers are more liberal when compared to the general U.S. population. Substantively, this corresponds to the nation’s lawyers being roughly center-left on the ideological spectrum, but the nation’s federal appeals courts being center-right.

In one of the most significant conclusions drawn from these findings, the paper’s authors suggest that political actors, be they presidents or governors, not only rely on ideology when appointing judges to the bench, but that “they do so where it benefits their party the most and when it concerns the most important courts.”

Sen, an affiliate of the Kennedy School’s Ash Center for Democratic Governance and Innovation, said the paper “provides a never-before seen look at the nation’s courts. For a long time, attorneys and observers of the courts have speculated about the ideological leanings of our nation’s courts. This research provides an answer.”

For more information, contact:

Daniel Harsha
Ash Center