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Do Political Processes Lead to Political Judges?

A greater number of participants in the appointments process—more appoint- ers—may lead to more political appointments. They may be more likely to appoint individuals with stronger political preferences in order to appease their political supporters. A member of the Senate in the united States, for example, may take part in confirmation hearings and debates over nominees, and may vote to veto appointments. He may then screen candidates for their political views.[1] Depending on her view of her role and the process to be followed, an elected executive actor such as a prime minister may also appoint individuals with strong political preferences. The converse may also be true—that is, that greater involvement of less overtly political actors such as the judiciary may lead to lesser ideological polarization on a high court. The judiciary may be less likely to choose individuals with particular policy preferences and more likely to appoint on the basis of merit or congeniality.

The process may also be important. Involving legislators in public and political processes for choosing judges may affect how judges themselves perceive their role and their professional obligations post-appointment.[2] For example, a judge appointed through the Senate confirmation process in the united States may believe that she is expected to decide in a political fashion as the process was so politically-oriented. She may not get such a signal from a less political process, though she may still vote in line with her political views anyway.

The transparency of the process potentially cuts both ways—both for and against the selected judges following particular political views. On the one hand, a transparent process allows an appointer to see the political views of the prospective appointees, and hence to have his own preferences reflected more accurately in the future decisions of the appointed judge (at least initially). The result would be greater degrees of ideological polarization on the high court between justices appointed by different actors.[3] Of course, transparency also allows the public to view this connection between the appointer and the appointed, and to punish any blatant political appointment if the public disapproves of political appointments.

Political appointers, a political process, and possibly transparency may all tilt the judiciary toward more political decision-making. Some countries have tried to counterbalance this influence through explicitly ensuring a range of viewpoints—that is, not getting rid of the politics in the appointment process but ensuring that different positions are represented. The committee process in the uK and Israel are moving toward such a balance, and the uS process at least involves both parties, though power over the presidency and the Senate dictates the relative power of each party. On the other hand, there is no balance where the prime minister has complete discretion to appoint a judge to the high court, such as in Canada, though there may be balance over time if control over the government shifts between parties.

As a result, the diverse processes and actors involved in the appointment process may give rise to greater voting based on personal preferences in some high courts than in others. These effects on voting may be self-reinforcing. If political appointments are made and there is a norm of voting based on personal preferences, future appointments are more likely to be based on political factors—that is, there may be a “selection culture” whereby the appointment generally is made on political grounds, which may either override or be exacerbated by the formal rules.[4] Looking across factors, we expect the following connection between the appointment process and decision-making by judges:[5]

H1: Judges will be more likely to be polarized in their voting where the appoint-

ers are political, the process is more political and there is less balance across the

political views of the appointers.

Direct comparisons across high courts are difficult because each country has a process with a mix of factors, making it hard to isolate one variable for comparison. However, some questions spring to mind. In Canada the prime minister chooses judges in a secretive process whereas in the united States the president and the Senate are involved through a very public process. each could be connected to very political appointments, but are they? India currently allows judges to choose judges; does this correlate with less politicized appointments than where political actors are more involved? Are more balanced processes such as in Israel and the uK associated with less politicized voting than in the united States or Canada? It is possible that these different processes are not correlated with differences in judges—they could all have high or all low levels of polarization, or differences in polarization may be unrelated to the institutional structure.

Before we compare across countries, consider prior studies of individual high courts. One might expect the uS process to result in a polarized court, given that it is highly political, with elected officials holding the power and any balance coming from the involvement of both the president and the Senate. Not surprisingly the Court has been quite divided along a liberal and conservative split. From the 1940s through the 1960s, the uS Supreme Court split predictably into two groups of judges who voted consistently across economics cases and civil liberties cases.71 In such cases, judges not only voted predictably, but the amount of disagreement and nature of dissent across the Court was also significant.72 For example, for civil liberties cases Justice Douglas dissented from only 1.3 percent of the liberal decisions, but from 77.7 percent of the conservative decisions. In contrast, Justice Rehnquist dissented from 54.8 percent of liberal decisions, but only 0.9 percent of the Court’s conservative decisions.73

This split has persisted over time.74 Grofman and Brazill found that differences along a liberal-conservative line accounted for over 80 percent of the variance in voting across judges between 1951 and 1993.75 In fact the split has

  • 71. Herman Pritchett documented a marked division of the US Supreme Court justices into two wings from 1939 to 1941, with a “conservative” wing always supporting business and a “liberal” wing frequently favoring labor or the government. Herman Pritchett, “Divisions of Opinion among Justices of the U. S. Supreme Court, 1939-1941” (1941) 35:5 The American Political Science Review 890 at 895-896. Glendon Schubert examined 1946-1963 and then 1946-1969 and found the judges were consistent in their voting across economics cases (the E-scale) and civil liberties cases (the C- scale) (correlation coefficients of greater than 0.90). See Glendon Schubert, The Judicial Mind: The Attitudes and Ideologies of Supreme Court Justices, 1946-1963 (New York: Northwestern University Press, 1965) [Schubert, Attitudes and Ideologies] at 122 for general conclusion on C scale; Schubert, Attitudes and Ideologies at 141-142 for conclusion on E scale. Schubert, Attitudes and Ideologies, at 80; Glendon Schubert, The Judicial Mind Revisited: A Psychometric Analysis of Supreme Court Ideology (Oxford: Oxford University Press, 1974) [Schubert, Psychometric Analysis].
  • 72. Mark S. Hurwitz & Drew Noble Lanier, “I Respectfully Dissent: Consensus, Agendas, and Policymaking on the U.S. Supreme Court 1888-1999” (2004) 21:3 Review of Policy 429 at 443.
  • 73. Jeffrey A. Segal & Harold J. Spaeth, “Decisional Trends on the Warren and Burger Courts: Results from the Supreme Court Data Base Project” (1989) 73 Judicature 103 at 107.
  • 74. The literature on the politics of decision-making on the US Supreme Court is vast and growing, too vast to cite fully. It has tended to find broadly a predictable split on the Court. For an influential study, see e.g. Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge: Cambridge University Press, 2002) at 86, setting out the principal models of judicial decision-making [Segal & Spaeth, Attitudinal Model], and more recently, Lee Epstein, William M. Landes & Richard A. Posner, Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Cambridge, MA: Harvard University Press, 2013) [Epstein, Landes & Posner, Behavior].
  • 75. Bernard Grofman & Timothy J. Brazill, “Identifying the Median Justice on the Supreme Court through Multidimensional Scaling: Analysis of ‘Natural Courts’” (2002) Kluwer Academic Publishers 55 at 58.

only become more pronounced over time. Devins and Baum argue that the divide between the liberal and conservatives judges has increased since the 1990s and particularly since 2010.[6] They attribute the rising divide amongst judges to the increasing polarization of politics in the united States. Martin and Quinn have used an influential approach of identifying how judges tend to vote relative to each other and have also found a significant split on the bench over time.[7]

Thus the united States has a political process and a polarized court—is it any different when there is a sole political actor making the decision such as in Canada, Australia, or formerly in the UK? You could imagine it turning out either way—if the prime minister has complete power to select candidates and does so through a closed process, he may use the opportunity to choose highly political judges; if that were the case, the Court’s composition would likely show a substantial swing in appointing judges with each change in government. On the other hand, the lack of an overtly political, public process may allow the prime minister to focus on legal competence rather than politics. It turns out that in each of the countries where the prime minister selects judges, high courts are polarized to some degree, with the debate being whether the polarization is similar to and as severe as that in the united States.

In Canada, justices on the Supreme Court of Canada could be divided into different groups as early as the 1950s and 1960s.[8] More recently, judges on the Court under Chief Justice Lamer in the 1990s split into two groups, although it is unclear whether they actually resembled the voting behavior of judges on the uS Supreme Court. On the one hand, McCormick found two different voting coalitions in this period, but argued they only explained about a third of divided decisions and were not static.[9] Two other studies, however, found strong similarities between the Lamer Court and the uS Supreme Court. Ostberg, Wetstein, and Ducat found justices in that period differed in three principal areas (support for communitarian values (such as social protection), procedural fairness, and judicial activism) and these differences explained 60 percent of the variance in how judges voted.[10] Similarly, Wetstein et al. found the judges divided on a liberal-conservative basis in all three areas of law that they examined: economic, criminal, and civil rights.[11] They concluded that liberal-conservative tensions appear to be as strong a force for explaining conflict with the Canadian Supreme Court as in the united States, at least in these particular areas of law.[12] Taking a slightly longer period (1984-2004), Alarie and Green found judges on the Court differ in how they vote across issues, with the difference being statistically significant but much smaller than the difference in the United States.[13]

Overall, judges on the Supreme Court of Canada appointed by prime ministers appear to be split along political grounds, though probably less so than for the US Supreme Court. The same is true for other countries where the prime minister appoints the judges. Judges on the Australian High Court appear to be at least somewhat divided into different groupings, particularly when we look at when they dissent.[14] Judges on the South African Supreme Court of Appeal from 1970 to 2000 differed significantly from each other with respect to their support for the accused in criminal cases.85 Although the uK House of Lords and subsequently the Supreme Court have very high rates of consensus, the judges show different voting tendencies, though whether these differences are caused by different political views, openness to dissent, or other personal characteristics is unclear.86

each of the countries where political actors select judges showed some polarization across judges. This connection is, however, a far cry from saying that having political actors choose judges causes more polarized courts. One obvious question is whether countries where judges are selected by balanced committees or by the judges themselves also have polarized courts. unfortunately little empirical work has been done on this issue. evidence from the uK does not take into account the fact that the Court only changed its appointment process to a committee-based system in 2009. Israel, which appoints its judges by committee, has a high court with some polarization at least in some areas of law—such as security and religious freedom cases.87 More work is needed across broader areas of law, and in India where the judges themselves decide on new members.88

Australian Journal of Political Science) 519 [Smyth, “Role of Attitudinal”]; Russell Smyth, “explaining Historical Dissent Rates in the High Court of Australia” (2003) 41:2 Journal of Commonwealth and Comparative Politics 83 [Smyth, “explaining Historical Dissent”].

  • 85. Kaitlyn L. Sill & Stacia Haynie, “Panel Assignment in Appellate Courts: Strategic Behaviour in the South African Supreme Court of Appeal” (2010) 37:2 Politikon 269 [Sill & Haynie, “Panel Assignment”]. For the South African Appellate Division evidence that judges who frequently decided emergency cases in the 1980s were less supportive of the individual in civil rights and liberties cases, see Stacia L. Haynie, Judging in Black and White: Decision Making in South African Appellate Division, 1950-1990 (New York: Peter Lang, 2003) at 84 [Haynie, Black and White].
  • 86. T.T. Arvind & Lindsay Stirton, “Lawyers and the Legal Model: Judicial Ideology, Judicial Professionalism and Institutional Strategy among the Law Lords” (2012) at 2, online: https:// extranet.sioe.org/uploads/isnie2012/arvind_stirton.pdf [Arvind & Stirton]; Chris Hanretty, “Lumpers and Splitters on the united Kingdom Supreme Court” (2013) American Political Science Association 2013 Annual Meeting Paper, 4.
  • 87. Keren Weinshall-Margel, “Attitudinal and Neo- Institutional Models of Supreme Court Decision Making: An empirical and Comparative Perspective from Israel” (2011) 8:3 Journal of Empirical Legal Studies 556 [Weinshall-Margel, “Attitudinal”].
  • 88. Judges on the Indian Supreme Court from 1950 to 1969 could be classified as liberal or conservative depending on how they decided civil liberties and economic cases. However, this period was before the cases that in effect gave the appointment power to the judges themselves. George H. Gadbois, “Selection, Background Characteristics, and Voting Behaviour of Indian Supreme Court Judges, 1950-1969” in Glendon Schubert & David J. Danelski, eds, Comparative Judicial Behaviour: Cross-Cultural Studies of Decision-Making in the East and West (New York: Oxford University Press, 1969) at 221-256 [Gadbois, “Background Characteristics”]. See also George H. Gadbois, Jr., “Indian Judicial Behaviour” (1970) 5:3 Economic and Political Weekly 149.

Although judges are polarized on high courts both in the United States and where a prime minister or president chooses the judges, there have been few empirical studies that attempt to compare decision-making across high courts. We can think of two basic ways of comparing how polarized judges are on a court. First, are the judges dispersed in their voting? A court with judges whose voting is more dispersed may indicate that the appointing process is leading to judges who are more willing to follow their personal preferences in their decisions. Second, how consistent are judges across areas of law? In terms of the uS literature, for example, are judges consistently voting in a liberal or conservative direction across areas of law?

  • [1] See Rutkus, “Appointment Process,” supra note 2 at 29 for a description of the confirmationhearing process. Views on abortion, and interpretive approaches to the Constitution, are justsome of the sensitive issues that have come up during these hearings.
  • [2] Michael J. Bryant, “Judging the Judges: Judicial Independence and Reforms to the SupremeCourt of Canada Appointment Process” (2004) 24 Supreme Court Law Review 29 (QL).
  • [3] Benjamin Alarie & Andrew Green, “Policy Preference Change and Appointments tothe Supreme Court of Canada” (2009) 47 Osgoode Hall LJ 1 at 45 [Alarie & green “PolicyPreference”]. In comparison, the appointment process in Canada may result in less informationabout judicial ideology, so prime ministers may make greater errors in their attempts to appointjudges sympathetic to their policy positions.
  • [4] See David Weiden, “Judicial Politicization, Ideology, and Activism at the High Courtsof the united States, Canada, and Australia” 2011 64:2 Political Research Quarterly 335 at 336[Weiden, “Judicial Politicization”] (arguing the formal appointment rules are less importantcross-nationally than the “selection culture” establishing whether appointments may be madeon partisan factors rather than merit).
  • [5] This hypothesis is related to, though slightly different, than Weiden, “Judicial Politicization,”supra note 69, who argues that “judges in a highly politicized judiciary will tend to engage ina greater degree of ideological decision-making” at 336. We examine the connection betweenthe institutional rules more broadly, positing a connection between these rules and ideologicalvoting. Weiden analyzes whether the high courts in the united States, Canada, and Australiaare highly politicized by examining the ideology of the judge relative to the appointing party,and then examining if greater politicization leads to greater ideological voting.
  • [6] Devins & Baum, supra note 8.
  • [7] Andrew D. Martin & Kevin M. Quinn, “Assessing Preference Change on the US SupremeCourt” (2007) 23 Journal of Law, Economics, and Organization 303 [Martin & Quinn,“Preference Change”].
  • [8] Fouts found justices on the Supreme Court of Canada in the 1950s could be classifiedinto four groups when voting on civil liberties and economic cases: individualists, liberals,authoritarians, and conservatives. He concluded that the Court resembled the US SupremeCourt in significant respects and drew parallels to ideologies of different judges, though recognizing that not all voting could be explained by ideology. Donald E. Fouts, “Policy-Makingin the Supreme Court of Canada, 1950-1960” in Glendon Schubert & David Danelski, eds,Comparative Judicial Behavior: Cross-Cultural Studies of Political Decision-Making in the Eastand West (New York: Oxford University Press, 1969) 271, 284. Peck also found three different groups on the Court from 1958 to 1967—those who supported private parties against thegovernment, those who supported the government, and those not easily classified: Sidney R.Peck, “A Scalogram Analysis of the Supreme Court of Canada, 1958-1967” in Glendon Schubert& David J. Danelski, eds, Comparative Judicial Behaviour: Cross-Cultural Studies of PoliticalDecision-Making in the East and West (New York: Oxford University Press, 1969) 293 at 320.
  • [9] Peter McCormick, “Birds of a Feather: Alliances and Influences on the Lamer Court 19901997” (1998) 36 Osgoode Hall Law Journal 366. See also F.L. Morton, Peter H. Russell & MichaelJ. Withey, “The Supreme Court’s First One Hundred Charter of Rights Decisions: A StatisticalAnalysis” (1992) 30 Osgoode Hall LJ 1 at 39 [Morton, “First One Hundred”] (finding in the 1980s,the Court had a division between activists (Wilson and Lamer) and non-activists (McIntyreand L’Heureux-Dube)).
  • [10] C.L. Ostberg, Matthew Wetstein & Craig R. Ducat, “Attitudinal Dimensions of SupremeCourt Decision Making in Canada: The Lamer Court, 1991-1995” (2002) 55:1 Political ResearchQuarterly 235 at 240-241.
  • [11] Matthew E. Wetstein et al., “Ideological Consistency and the AttitudinalConflict: A Comparative Analysis of the U.S. and Canadian Supreme Courts” (2009) 42:6Comparative Political Studies 763 at 781 [Wetstein et al., “Comparative Analysis”].
  • [12] Wetstein et al., “Comparative Analysis,” supra note 81 at 780.
  • [13] Alarie & Green “Policy Preference,” supra note 68 (found that the Martin Quinn scores(based on ideal policy points) for Supreme Court of Canada judges from 1984 to 2004 couldbe differentiated by ideology but the level of dispersion appears less than in the US SupremeCourt).
  • [14] For discussions of the Australian High Court, see R.N. Douglas, “Judges and Policy on theLatham Court” (1969) 4:1 Politics 20; Glendon Schubert, “Political Ideology on the High Court”(1968) 3:1 Politics 21; Russell Smyth, “The Role of Attitudinal, Institutional and EnvironmentalFactors in Explaining Variations in Dissent Rates on the High Court of Australia” (2005) 40:4
 
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