Partisan Imbalance on the U.S. Courts of Appeals
Velona, Jess A., Judicature
As a statistical analysis demonstrates, Republicans control a disproportionately high percentage of three judge panels, and the disparity will widen further during President Bush's second term.
With the re-election of President Bush, and a fragile truce in the confirmation wars, the Republican Party has the opportunity to add to its majority on the U.S. courts of appeals. This is significant because for the large number of cases that are ideologically charged and in which the law affords more than one plausible result, decades of research indicates that which party's president appointed a given judge makes a difference in the case outcome.1 Hence, regarding those cases, the appellate courts will become more conservative in the next four years.
This article demonstrates that the shift will be significantly more pronounced than was previously believed. Republican-appointed judges will hold a majority on an even higher percentage of appellate three-judge panels than their raw numbers would suggest. Statistical principles establish that when drawing the membership of such panels, the partisan majority on a given circuit is exacerbated. Simply put, the majority party holds the edge on a supermajority of the panels. Moreover, as one party's circuit majority increases, so does that exaggeration effect.
This article also argues that the exaggeration effect lacks legitimacy, because it effectively adds to the influence of ideology on the federal appellate bench in a manner lacking electoral endorsement. It then asserts that discovery of the exaggeration effect and recognition of its illegitimacy may increase pressure for reform of the judicial selection process to restore greater partisan balance on the courts of appeals.
The role of ideology
According to decades of empirical research, ideology has a significant impact on the decision making of court of appeals judges. Virtually every study of the voting behavior of appellate jurists has found that judges appointed by Republican presidents vote on the conservative side of a case far more often than do Democratic judges.
A prime source of such ideological voting behavior is nonunanimous decisions. Ten percent of the 5,000 published decisions in 2004-about 500 cases-were nonunanimous.2 Important cases are overrepresented in that group: one study reported that 32 percent of First Amendment cases are nonunanimous.3 By definition, cases in which the judges disagree have two possible legal outcomes. Moreover, in the vast majority of those appeals4 one can readily identify the liberal versus conservative sides of the case: labor vs. management, criminal defendant vs. prosecution, government regulator vs. business, civil rights plaintiff vs. employer, etc.
However, ideology has an impact beyond nonunanimous cases. Unanimous reversals, which represent about 25 percent of total published cases, or 1,200 decisions,5 also indicate the presence of multiple possible outcomes, since the appellate panel and district court judge disagreed. Scholars have found that Democratic and Republican judges vote quite differently in such cases; indeed, the spread is almost as wide as in cases with dissents.6 Accordingly, studies of the role of ideology in judicial decision making frequently examine both nonunanimous cases and unanimous reversals.7
A final source of ideological decision making is a select minority of the approximately 20,000 decisions filed in 2004 that are not published and yet appear online on Westlaw and/or Lexis. While the normal assumption is that unpublished cases are uniformly noncontroversial, about 1,000 such decisions are nonunanimous or are unanimous reversals. Moreover, ideology makes a difference in those unpublished cases: Republicans vote significantly more often on the conservative side of such decisions than do Democrats.8
Accordingly, approximately 2,500 court of appeals cases each year are nonunanimous or unanimous reversals in which ideology potentially has an impact on the judges' voting behavior. …