Judges and Ideology: Public and Academic Debates about Statistical Measures
Sisk, Gregory C., Heise, Michael, Northwestern University Law Review
Scholars who use empirical methods' to study the behavior of judges long have labored in relative obscurity, unknown outside of academic circles (and indeed they only recently have emerged into the mainstream of the legal academy).2 However, the seclusion of the ivory tower has been breached, as public attention has become increasingly focused upon studies that suggest the influence of ideological or partisan variables on the outcomes of court cases. Over the last few years, the statistical work of scholars on judicial decisionmaking has provoked controversy in the wider legal community and has been enlisted by one side of the ongoing "war"3 in the political arena about appointment of federal judges.
In one exchange, played out in the law reviews4 but also reported in the legal press,5 a leading federal appellate judge castigated the work of empirical legal researchers as "the heedless observations of academic scholars who misconstrue and misunderstand the work of the judges"6 and which left the misleading impression "that judges are lawless in their decision making, influenced more by personal ideology than legal principles."7 In another instance, a United States Senator enthusiastically embraced an empirical study by one prominent law professor as purportedly confirming the prevalence of partisan voting on the federal appellate bench and thus as justifying opposition to certain judicial nominations by the current administration.8 Given the public notice received thus far, empirical research on judicial decisionmaking is likely to attract heightened attention in the future.
Simultaneously, within the academy, two scholars from a political science background drew widespread notice in learned society when lamenting in the pages of a leading law review that the state of empirical legal scholarship conducted by law professors was "deeply flawed."9 As a prime example of the alleged methodological errors prevalent in research conducted by legal scholars, these critics identified the customary adoption by judicial behavior researchers of the political party of the appointing President as a proxy for the political ideology or policy preferences of federal judges.10 These commentators decried this measure as unsound and as inferior to an alternative statistical construct recently developed in political science research." Law professors engaged in empirical research, including the Authors of this present Article,12 responded in the pages of that law review, offering pointed responses both to the general charge that law professors regularly contravene fundamental methodological rules and to the particular censure that past studies using one measure became defective in method and worthless in judgment because an innovative approach subsequently had been introduced to the scholarly community.13
In this Article, we begin by highlighting these three episodes in which empirical legal scholarship on judicial decisionmaking emerged from obscurity to become the subject of disputation in a larger societal or academic arena-two disputes that unfolded before the public eye and another which was played out in legal academic discourse.14 We outline each controversy; identify the major political, judicial, and academic players that initiated or were drawn into the debate; briefly describe the empirical research involved; and summarize the opposing arguments concerning the implications of the research for public policy or the substance of the academic debate.15
Next, through separate accounts pertinent to each venue/subject-the public/policy versus the academic/methodological-we submit new evidence for consideration, drawn from our own continuing research on decisionmaking in the lower federal courts. We report the results of our comprehensive empirical study of religious freedom decisions in the federal district courts and courts of appeals, the most extensive and multi-faceted study of such decisions to date, with special focus here upon variables that attempt to quantify the anticipated ideological leanings of judges. …