When Do Political Factors Affect Judicial Decision Making?
In the attempt to set forth a general theory of public law, one of the first questions that must be addressed is: Under what conditions is it most probable that a particular variable will be significantly related to judicial outcomes? My observations of public law research led me to believe that, in spite of the apparent contradictions that exist in the analyses, there might still be an underlying thread that links cases into broad categories. Chapter 1 set forth the essential premise that judges are most often unconstrained by the law and facts of a case since laws are vague and facts are uncertain. Under these circumstances, courts wield great discretion and may be influenced by extraneous variables. This chapter begins the quest for a general theory of public law with the question of when political factors affect judicial decision making.
Before addressing the broader question of when political factors affect judicial decision making, it is necessary to identify relevant political factors. Directly opposing the traditional view of the federal judiciary as apolitical, which arises from the fact that these judges are appointed rather than elected, previous public law research has repeatedly shown that judges are influenced in their decision making by political variables ( Cook 1981; Wenner 1982; Wenner and Dutter 1988; Baum 1989; Yarnold 1990a, 1990b, 1991). Although many political variables have been raised in public law analyses, I intend to focus on the following:
One of the most conspicuous and important features of U.S. politics is the fact that it is dominated by a two-party system, with political "spoils"