Our “politicized” judiciary — let’s be thankful for it

How about this for a scoop: judges are more conservative on average than lawyers. That’s the conclusion reached by two political scientists — Adam Bonica of Stanford and Maya Sen of Harvard’s Kennedy School — based on an analysis of “the ideological positioning of nearly half a million judges and lawyers” as reflected in their campaign contributions.

Bonica and Sen attribute this ideological mismatch to the “politicization” of courts that results from the judicial selection process. They are correct, if one accepts their apparent presumption that judges should reflect the ideological slant of the pool from which they are selected, rather than the American people on whose behalf they attempt to dish out justice.

Lawyers are a liberal breed due in large part, I think, to the indoctrination they receive in college and law school. But in our democracy, moderates and conservatives participate in the selection of judges. In fact, when they win elections to executive positions, they get to appoint judges. Hence, the ideological mismatch between lawyers and judges.

Bonica and Sen found that the mismatch between the ideology of lawyers and judges is greater on higher courts than on lower ones. This almost certainly is because moderate and conservative politicians pay particular attention to who becomes a judge on the more important courts. They would be foolish not to (indeed, some Republican administrations were foolish not to have paid more attention than they did).

By describing this process as “politicization,” Bonica and Sen are attempting to disparage it. The first sentence of their abstract reads: “The American judiciary has increasingly come under attack as polarized and politicized.” Their study proceeds to validate this “attack.”

But in a democracy, there’s a better way of looking at the mismatch phenomenon and the process that produces it. Under this view, mismatch becomes a problem if the ideology of judges diverges from that of the American public, not from that of lawyers. And the process is “politicized” in a negative sense only if it produces this sort of mismatch, i.e., a judiciary that favors political views that haven’t prevailed in the court of public opinion.

On this view, as Eric Posner says, “we should congratulate rather than condemn Republicans for bringing much-needed ideological balance to the judiciary.”

NOTE: The New York Times discusses the Bonica and Sen study in an article by Adam Liptak called “Why judges tilt right.” But the study doesn’t show that judges tilt right, and it is more consistent with the view that lawyers “tilt left.”