Home Economics Commitment and cooperation on high courts : a cross-country examination of institutional constraints on judges
Do Appointers Replicate Themselves?
On a more basic level, we may think that a person who holds the appointment power is more likely to appoint a judge who thinks like her, all other things being equal. She may believe that such a choice is appropriate or may be following an unconscious bias toward individuals with similar views. In either case, judges appointed by people with similar views should decide cases in similar ways, and it is likely that the preferences of appointed judges will change as the preferences of the appointer changes (such as through a change in government). The appointer does not have to be political for this connection to hold—judges in India may, for example, tend to appoint judges with similar views to their own.
For this connection between the judge and who appoints her to hold, the appointer must be able to determine at the time of appointment how an individual will vote once appointed to the bench. Even if someone wishes to appoint individuals with preferences similar to her own, she may be unable to if she can’t tell how the individual will decide cases once on the court. Open hearings and questioning may provide greater evidence of the nominee’s views, but may still be somewhat unhelpful if nominees are unwilling to give fulsome or non-evasive answers during the process. Appointers can look at how candidates have acted in the past—how they decided cases on the court they are on, for example—but judges may act differently on a high court than on a lower court where they feel more bound by decisions of a higher court or be concerned about potential reversal by a higher court.
Despite these variables, as a starting point, we expect that:
H2: A judge’s voting will be positively related to the political views of whoever
Identifying the political views of the appointer may be quite simplistic such as coding the political party of the appointing party or parties. Although such a measure has some intuitive appeal, it also has several problems. One of the largest is that it may ignore or downplay differences across appointing parties. For example, different appointers (such as prime ministers or presidents) may be more or less conservative or liberal despite being from the same party. Although more sophisticated measures of ideology can be used, if how a judge votes is strongly related to the party of whoever appointed him in some countries rather than others, it provides an interesting opening to ask about the differences.
Further, despite the best efforts of some governments to influence high courts in their preferred ideological direction, these efforts are not always successful. One possible reason is that judges, once appointed, may change their judicial ideology. This is important, not least because following appointment it is not possible to directly influence decision-making by appointees. In most jurisdictions it is difficult legally, not to mention risky politically, to try to remove sitting high court judges. For example, in the united States, justices on the Supreme Court are entitled to hold office “during good behavior” and once a judge is confirmed, a president has no power to remove her from office. A judge’s voting may be most likely to correspond to the ideology of the appointing party in the initial period on the bench and may “drift” from that position over time. For example, looking at 23 US Supreme Court justices who served at least 15 terms since 1937, Epstein, Landes, and Posner found that eight of the justices became more conservative over their time on the bench, of whom Republican presidents appointed six. Democratic presidents appointed all four of the judges who became more liberal. Similarly on the Supreme Court of Canada some justices became more liberal, some more conservative, and some showed no change, but there was no apparent connection to the party of the appointing prime minister; both Conservative and Liberal appointees became more conservative or more liberal or stayed the same.
unsurprisingly, American presidents tend to appoint justices with political views similar to their own, particularly in recent years. Epstein, Landes, and Posner, for example, looking at non-unanimous uS Supreme Court decisions between 1937 and 2009 found that Republican appointees voted more conservatively overall than Democratic appointees. The difference was quite large in some areas of law such as in civil rights where the Republican appointees voted in a conservative fashion a little over half the time whereas Democratic appointees only about a third of the time. They point out that when using more sophisticated measures of policy views, Republican presidents can be seen to sometimes appoint liberal justices and Democratic presidents conservative justices. However, the overall relationship is strong. Similarly, Devins and Baum argue that although there was a connection between the party of the appointing president and the voting of justices in the past, it was never perfect—sometimes Republican presidents appointed justices who were more liberal than some Democratic appointees. However, they argue that the Court has been completely polarized since 2010 with Republican appointees as a bloc more conservative than Democratic appointees.
The relationship between the political views of the appointing party and the appointed judge is weaker in other countries. In Canada, the party of the appointing prime minister is positively related to voting by the appointed justice and the newspaper ideological scores for that justice, but the connection is not as strong as in the United States.132 On average over the 1982-2005 period, a justice appointed by a Liberal prime minister had a 5 percent higher liberal voting record than a Conservative appointee.133 The connection differs across areas of law—in some areas the party of the appointing prime minister has little or no connection with how the justices vote.134 Even in Charter of Rights and Freedoms cases, Liberal appointees were considerably more likely to vote liberally in equality cases than their Conservative counterparts, but not in other types of Charter appeals.135 Other indicators of personal views seem more closely related to how justices decide cases than the party of the appointing prime minister, and even when there is a connection, it is much more nuanced than in the United States.136
The justices on the High Court of Australia similarly seem to be less easily differentiated by the party that appointed them than in the United States.137 If and 1980s. Andrew D. Martin & Kevin M. Quinn, “Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953-1999” (2002) 10:2 Political Analysis 134.
we return to Weiden’s attempt to compare justices in Canada, the United States, and Australia, we see he created a judicial politicization score for each country that measured the degree of correspondence between the political party of the appointing government and the newspaper ideology score of the appointed judge. He found that the Canadian Supreme Court had lower judicial politicization than both the uS Supreme Court and the Australian High Court during the period 1990-1999. A higher judicial politicization score indicates that the appointing government in a country tends more frequently to appoint ideologically like-minded judges. The US Supreme Court had the highest judicial politicization score at 0.917, which was much higher than that of the Canadian Supreme Court at 0.5. The Australian High Court was less politicized than the US Supreme Court, but more politicized than the Canadian Supreme Court.
Evidence of a tie to the politics of the appointing parties is also weak on the UK House of Lords, with studies coming to differing conclusions. Hanretty found the ideal points of Law Lords were weakly connected to the party who appointed the justice whereas Robertson found that previous partisanship affiliation was irrelevant to rates of agreements between judges. Also when the Lord Chancellor made the appointments (that is before the UK changed the committee process), a judge was more likely to be appointed to the House of Lords if his decisions as a lower court judge tended to be affirmed by the House of Lords and he was not extremely anti-government. However, evidence is mixed as to whether it mattered that the judge had been appointed to the Court of Appeal by the same party making the high court appointment—with Salzberger and Fenn finding it made no difference, and Hanretty finding that a judge was more likely to be appointed if he had been previously appointed by the same party.
Judges themselves play a greater role in the appointment of the high court in India and Israel. Israel provides an interesting opportunity to test the connection between candidates and the justices currently on the Supreme Court. As we saw, in Israel justices are typically appointed temporarily to the bench prior to a full-time appointment. Temporarily appointed judges who more frequently dissent (that is, disagree with their colleagues on the bench) were less likely to be permanently appointed to the High Court. Interestingly, temporary judges who tend to grant more applications by individuals against the state are more likely to be appointed to the bench.145
How does this connection between the appointer and the judge look when we use our data from the High Courts Judicial Database and the US database? It is difficult to compare across countries because of the different orientations of political parties in different countries and across time. However, Figure 3-8 shows what we find if we use a very blunt measure of “conservative” and “liberal” appointers across different countries (other than India as judges on the Indian Supreme Court appoint the new judges rather than a political party doing so).146 It shows the difference between the liberal voting rates for conservative and liberal appointees, controlling for the direction (liberal or conservative) of the lower court decision.147 The US Supreme Court has the highest difference with an almost 10 percent difference in liberal voting between liberal and conservative appointees in the period from 1970 to the early 2000s. Differences across judges on the Australian High Court and the Canadian Supreme Court were similar at about 5 percent with the difference for judges on the UK House of Lords the lowest at about 3 percent. These positive differences are statistically significant for Australia, Canada, and the UK, but likely as a function of the crudeness of the measure of ideology (party of the appointer) the 95 percent confidence intervals are particularly large for the United States.
in terms of background. Gadbois, “Background Characteristics”, supra note 88 (studying the court between 1950 and 1967); Abhinav Chandrachud, “An Empirical Study of the Supreme Court’s Composition” (2011) 46:1 Economic and Political Weekly 1 (studying judges on the court between 1985 and 2010). At least in the period 1950-1967, shared backgrounds, as opposed to ideology, did appear to be linked to greater agreement). Gadbois, “Background Characteristics”, supra note 88 at 336.
Figure 3-8 Difference in liberal voting rates between judges appointed by conservative appointers and liberal appointers, 1970 to early 2000s. This figure shows the mean difference for each country, along with the 95 percent confidence interval, controlling for the direction (liberal or conservative) of the lower court decision. The difference for justices of the uS Supreme Court is almost twice as high as the Australian High Court or the Supreme Court of Canada, and about three times greater than for the uK. Note, however, the large 95 percent confidence interval for the uS Supreme Court and the fact that these confidence intervals overlap for all countries. India is not included as the judges are appointed by the chief justice rather than a political actor.
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