Academic

Yung on Partisanship & Independence in the Federal Courts

By Lawrence Solum

Corey Rayburn Yung (The John Marshall Law School) has posted Beyond Ideology: An Empirical Study of Partisanship and Independence in the Federal Courts on SSRN. Here is the abstract:

In an era when the public, media, pundits, and politicians have fixated on the judicial confirmation battles, hurling the overused labels "liberal" and "conservative" have essentially become the sine quo non of the nomination political theater. Unfortunately, empirical scholarship has done little to move these discussions beyond a focus on perceived ideological activism by judges (particularly for judges on the United States Courts of Appeals). This narrow perspective in studies has continued despite strong evidence that ideology has played a very limited role in decisionmaking at the federal appellate level. This article identifies and measures other dimensions of judicial behavior to improve both the understanding of and vocabulary surrounding debates about judges. In particular, it recognizes both independence and partisanship as aspects of judicial behavior that are distinct from ideological activism.

Using a new dataset of over 10,000 cases from eleven United States Courts of Appeals in 2008, this study computes and applies Partisanship and Independence Scores for 178 judges. Based upon regression analysis of those measures, the identified dimensions of judicial behavior offer superior predictive capabilities of decisions to dissent, concur separately, and reverse lower court judgments in a partisan manner than the dominant models used by researchers.

There are also several notable findings of statistically significant relationships between the Independence and Partisanship Scores and background characteristics of the judges studied. Of particular note, judges appointed by Republican Presidents are, on average 20% more partisan in reviewing district court judgments than those appointed by Democrats. Presidents George H.W. Bush and George W. Bush are, on average, responsible for appointing the most partisan judges studied. Further, if a judge had been a law professor, he or she is more likely to be independent. Legislative or executive experience is associated with lower independence. Department of Justice work experience is correlated with higher partisanship.

Highly recommended.

Full post as published by Legal Theory Blog on February 28, 2011 (boomark / email).