Does it matter which party nominated a judge? Here’s why it does.
“Why does the media insist on identifying the president who appointed the federal judges who make a newsworthy decision? It feeds the misimpression that our courts are just partisan policy arms of the party of the president behind their nomination. Competing judicial philosophies are the source of differences, and one school tends to come from Republicans, the other from Democrats. But the courts are not partisan policy [forums] embracing and continuing the substantive issue fight between the two major parties.”
This email, from a federal appeals court judge, arrived in my inbox shortly after I wrote a column about the appeals court ruling denying former president Donald Trump’s claim of absolute immunity for his acts as president — an opinion, that, as I noted, came from two Biden appointees and a nominee of George H.W. Bush.
As it happens, the judge who emailed me was named to the bench by President Ronald Reagan, but in this situation his party affiliation isn’t relevant. Judges named by presidents of both parties bristle — equally and forcefully — at the journalistic practice of identifying judges this way, and I get that. No one wants to be thought of as a partisan hack, doing the bidding of political allies. And, as my judge friend noted, a big piece of the underlying reality — “competing judicial philosophies” — is far more subtle than hackery.
Still, as I replied to the judge, in the current environment, party is relevant. In a politically salient case, knowing the identity of the president who nominated a particular judge, as well as examining the partisan composition of a three-judge panel (the way federal appeals courts operate), is a reliable predictor of outcome.
Federal judges have argued passionately to me that it disserves the public to reinforce the notion of judges as political actors. I think it’s the opposite: It would be keeping relevant data from readers not to include this information. In recent years, as judicial philosophy has become an increasingly important factor in judicial selection for presidents of both parties, I have made it a practice to note the identity of the president who nominated the judge or judges involved. If judges are behaving in ways that could be predicted by their political affiliations, readers deserve to know. If they are ruling contrary to what might have been expected, that’s significant, too.
Now comes a groundbreaking study by a Harvard Law School professor that buttresses my point — if anything, it suggests we have underestimated the impact of party affiliation on judicial outcomes. Alma Cohen, whose training is as an economist, examined 630,000 federal appeals court cases from 1985 to 2020 and found that the impact of party affiliation went far beyond hot-button issues such as guns or abortion.
Rather, she wrote, “the political affiliations of panel judges can help predict outcomes in a broad set of cases that together represent over 90% of circuit court decisions. The association between political affiliation and outcomes is thus far more pervasive than has been recognized by prior research.” Note, Cohen isn’t contending that partisan affiliation affects 90 percent of cases — just that it has a statistically significant influence on outcomes in this large class of decisions.
Cohen’s hypothesis is that Democratic judges and Republican judges “systematically differ in their tendency to side with the seemingly weaker party.” For instance, in civil litigation between individuals and institutions, such as the corporations or the government, “panels with more Democratic judges are more likely than those with more Republican judges to reach a decision that favors the individual party.”
The same holds true for other types of cases. “In the categories of criminal appeals, immigration appeals, and prisoner litigation, increasing the number of Democrats on a circuit court panel raises the odds of an outcome favoring the weak party,” Cohen wrote. Overall, “switching from an all-Republican panel to an all-Democratic panel is associated with an increase of 55% in the baseline odds of a Pro-weak outcome.” In immigration cases, an all-Democratic panel was twice as likely to produce a finding for the immigrant as an all-Republican one during the 35-year period she studied.
One criticism of earlier examinations of partisan differences among judges has been that they do not take into account unpublished decisions, which account for the vast majority of appellate action. Another is that they focus on the subset of rulings that generate dissents, just a few percentage points of all decisions and around 10 percent of published opinions, those that are deemed to have precedential value. But Cohen’s work showed similar partisan effects among both published and unpublished decisions, and in both unanimous and divided panels.
Among other interesting findings, the impact of a panel composed of nominees of both parties was not symmetrical: “A lone Republican judge on a panel with two Democratic judges has a stronger ‘moderating’ effect on the panel majority than does a lone Democrat on a panel with two Republican judges.” And Democratic appointees seemed more inclined to reverse lower-court rulings than their Republican counterparts: “In civil litigation cases between parties of seemingly equal power, panels with more Democratic judges are less likely to defer to lower-court decisions.”
The real-world impact of these differences is striking. Had Al Gore become president in 2000 instead of George W. Bush, Cohen estimated that a two-term Gore presidency, and the judges he would have appointed, would have changed the outcome in about 10,000 cases over the next 20 years, including 2,500 improved outcomes for individuals in civil litigation, about 1,100 improved outcomes for private parties in civil suits against the government, about 2,500 improved outcomes for criminal defendants in criminal appeal, about 1,500 improved outcomes for immigrants in immigrations appeals and about 1,100 improved outcomes for prisoners in prisoner litigation.
“It’s important to know that this effect is not just in highly controversial cases,” Cohen told me. “It’s in almost all cases.”
All of which is to underscore not only why I identify judges by party, but, as the presidential election looms, how important it is for all of us to pay attention to the composition of the courts. Who becomes president makes a difference, not just for the Supreme Court, but for lower courts as well. As much we might prefer it to be otherwise, party matters.
“Why does the media insist on identifying the president who appointed the federal judges who make a newsworthy decision? It feeds the misimpression that our courts are just partisan policy arms of the party of the president behind their nomination. Competing judicial philosophies are the source of differences, and one school tends to come from Republicans, the other from Democrats. But the courts are not partisan policy [forums] embracing and continuing the substantive issue fight between the two major parties.”
This email, from a federal appeals court judge, arrived in my inbox shortly after I wrote a column about the appeals court ruling denying former president Donald Trump’s claim of absolute immunity for his acts as president — an opinion, that, as I noted, came from two Biden appointees and a nominee of George H.W. Bush.
As it happens, the judge who emailed me was named to the bench by President Ronald Reagan, but in this situation his party affiliation isn’t relevant. Judges named by presidents of both parties bristle — equally and forcefully — at the journalistic practice of identifying judges this way, and I get that. No one wants to be thought of as a partisan hack, doing the bidding of political allies. And, as my judge friend noted, a big piece of the underlying reality — “competing judicial philosophies” — is far more subtle than hackery.
Still, as I replied to the judge, in the current environment, party is relevant. In a politically salient case, knowing the identity of the president who nominated a particular judge, as well as examining the partisan composition of a three-judge panel (the way federal appeals courts operate), is a reliable predictor of outcome.
Federal judges have argued passionately to me that it disserves the public to reinforce the notion of judges as political actors. I think it’s the opposite: It would be keeping relevant data from readers not to include this information. In recent years, as judicial philosophy has become an increasingly important factor in judicial selection for presidents of both parties, I have made it a practice to note the identity of the president who nominated the judge or judges involved. If judges are behaving in ways that could be predicted by their political affiliations, readers deserve to know. If they are ruling contrary to what might have been expected, that’s significant, too.
Now comes a groundbreaking study by a Harvard Law School professor that buttresses my point — if anything, it suggests we have underestimated the impact of party affiliation on judicial outcomes. Alma Cohen, whose training is as an economist, examined 630,000 federal appeals court cases from 1985 to 2020 and found that the impact of party affiliation went far beyond hot-button issues such as guns or abortion.
Rather, she wrote, “the political affiliations of panel judges can help predict outcomes in a broad set of cases that together represent over 90% of circuit court decisions. The association between political affiliation and outcomes is thus far more pervasive than has been recognized by prior research.” Note, Cohen isn’t contending that partisan affiliation affects 90 percent of cases — just that it has a statistically significant influence on outcomes in this large class of decisions.
Cohen’s hypothesis is that Democratic judges and Republican judges “systematically differ in their tendency to side with the seemingly weaker party.” For instance, in civil litigation between individuals and institutions, such as the corporations or the government, “panels with more Democratic judges are more likely than those with more Republican judges to reach a decision that favors the individual party.”
The same holds true for other types of cases. “In the categories of criminal appeals, immigration appeals, and prisoner litigation, increasing the number of Democrats on a circuit court panel raises the odds of an outcome favoring the weak party,” Cohen wrote. Overall, “switching from an all-Republican panel to an all-Democratic panel is associated with an increase of 55% in the baseline odds of a Pro-weak outcome.” In immigration cases, an all-Democratic panel was twice as likely to produce a finding for the immigrant as an all-Republican one during the 35-year period she studied.
One criticism of earlier examinations of partisan differences among judges has been that they do not take into account unpublished decisions, which account for the vast majority of appellate action. Another is that they focus on the subset of rulings that generate dissents, just a few percentage points of all decisions and around 10 percent of published opinions, those that are deemed to have precedential value. But Cohen’s work showed similar partisan effects among both published and unpublished decisions, and in both unanimous and divided panels.
Among other interesting findings, the impact of a panel composed of nominees of both parties was not symmetrical: “A lone Republican judge on a panel with two Democratic judges has a stronger ‘moderating’ effect on the panel majority than does a lone Democrat on a panel with two Republican judges.” And Democratic appointees seemed more inclined to reverse lower-court rulings than their Republican counterparts: “In civil litigation cases between parties of seemingly equal power, panels with more Democratic judges are less likely to defer to lower-court decisions.”
The real-world impact of these differences is striking. Had Al Gore become president in 2000 instead of George W. Bush, Cohen estimated that a two-term Gore presidency, and the judges he would have appointed, would have changed the outcome in about 10,000 cases over the next 20 years, including 2,500 improved outcomes for individuals in civil litigation, about 1,100 improved outcomes for private parties in civil suits against the government, about 2,500 improved outcomes for criminal defendants in criminal appeal, about 1,500 improved outcomes for immigrants in immigrations appeals and about 1,100 improved outcomes for prisoners in prisoner litigation.
“It’s important to know that this effect is not just in highly controversial cases,” Cohen told me. “It’s in almost all cases.”
All of which is to underscore not only why I identify judges by party, but, as the presidential election looms, how important it is for all of us to pay attention to the composition of the courts. Who becomes president makes a difference, not just for the Supreme Court, but for lower courts as well. As much we might prefer it to be otherwise, party matters.
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