Beyond Ideology: An Empirical Study of Partisanship and Independence in the Federal Courts

Abstract

This Article identifies and measures dimensions of judicial behavior separate from ideology 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 more than 10,000 cases from eleven U.S. courts of appeals in 2008, this Study computed and applied 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, to concur separately, and to 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 twenty percent 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, she is more likely to be independent. Legislative or executive experience is associated with lower independence. Work experience at the Department of Justice is correlated with higher partisanship.