The spirited political battles over US Supreme Court and many lower court judicial appointments are likely to continue so long as the nation's political landscape remains fractured and polarized. That is one of the findings in a new book, “The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentives Shape the American Judiciary,” co-authored by Maya Sen, Professor of Public Policy. Sen and co-author Adam Bonica present a compelling argument about how the nation's courts become political tools used by the two political parties to further their interests. The book also examines several of the current judicial battles taking place on the state level, including in Florida, Kansas, and North Carolina. We recently spoke with Professor Sen about the issues she explores in her new book.
Q: How does this book build upon your previous research on issues relating to the nation’s legal system and the judiciary?
A: I've written fairly extensively on the relationship between ideology and decision-making in the courts. One of the things that we can comfortably say about judges is that their decision-making is well predicted by their ideologies and partisan leanings.
But recently, I've become more and more interested in bigger questions -- about how we measure ideology and what ideology even means when you consider a broader political landscape that also involves politicians and lawyers. After all, American politics is really in a very turbulent period, and judges operate in this broader political landscape, just like the rest of us.
This book is a product of that interest. In the book, we lay out an argument about how courts become tools used by the two political parties to further their interests. In investigating this question, though, we have to take into account the fact that the courts operate within the broader political fabric of the United States. That landscape includes not just the judges themselves, but other people who have possibly divergent interests. This includes senators and the president, of course, but also members of the legal profession – since, after all, all judges are lawyers.
So, in trying to shape the judiciary, political parties essentially have to deal with not just their own constituencies and conflicts, but also the interests of the legal profession. The conflicts among these groups are what we refer to as "the judicial tug of war." When the interests of the legal profession and politicians align, then conflict is minimal -- but, when they don't align, that's when you see the politicization of the courts.
Q: When doing research for the book, you used novel quantitative analyses to examine how the relationship between political actors and ‘legal elites’ impacts the selection of judges. How do you define legal elites and what were your key findings?
A: Being connected to a policy school, we sometimes lose sight of the fact that the typical member of Congress is not someone who is a graduate of a policy school like HKS but, in fact, a lawyer. In 2018, about 42 percent of Congressional representatives came from the legal profession. With Joe Biden now as President, 33 out of 46 -- or about 71 percent -- of presidents have been lawyers or trained in the law. And, of course, lawyers comprise 100 percent of all of our judges.
This is really remarkable, especially when you consider that only around 0.4 percent of the population have law degrees. Lawyers are more "overrepresented" in Congress than are millionaires!
So, when we think about the legal elites, we actually take a pretty broad view. The book considers the fact that, not only are members of the legal profession overrepresented in halls of power, but that they understandably have their own ideological interests and policy preferences. It's understandable that such a powerful group would have its own interests at play.
Using some of the latest data on ideology and partisan behavior, we find that, on average, the legal profession increasingly trended leftward. This creates a bit of a problem for conservative politicians, and what we find is that conservatives end up being the ones most likely to use partisan tools – such as partisan elections or legislative appointments – to get the judges they prefer.
Q: You examine in some detail how this tension has played out in states like Florida, Kansas, and North Carolina. What did you learn through those analyses?
A: Although we work primarily with quantitative data, we drew on the examples of several states to understand the emergence and development of judicial reform attempts. North Carolina is particularly fascinating. Right before the 2016 general election, four of the North Carolina Supreme Court justices were Republicans and three were Democrats, giving Republicans a razor-thin majority. However, in the 2016 election, a Democrat defeated a Republican in a nonpartisan election, changing the calculus completely. Democrats then held a narrow majority and, hence, the ability to decide cases that could affect the political futures of Republicans across the state.
In response to all of this, the Republican-controlled general assembly changed how judges are selected, from nonpartisan to partisan elections, overriding the veto of the Democratic governor in the process. This is exactly the judicial tug of war at play – and here, one side ended up re-writing the rules to get closer to the outcome it wanted.
Q: In the book, you also make some compelling predictions about the composition of courts moving forward. Please explain those insights.
A: This will not surprise readers, but we think that the conflicts over the courts will only escalate as the political landscape of the country becomes more bitterly partisan and polarized. In addition, as law school graduates lean more liberal – as they have in recent years – this will continue to create thorny problems for Republicans. This will especially be the case for GOP state representatives dealing with merit commissions or other judicial selection mechanisms that explicitly involve members of the legal profession. I expect that such judicial selection mechanisms will, in places controlled by the GOP, be eventually replaced by partisan elections or executive appointments, which are both selection mechanisms that limit the legal profession’s involvement and are therefore more favorable to Republicans.