5 - Political Incentives and Politicization in the Federal Courts

Summary

We begin our data analysis in Chapter 5, which empirically links our broad predictive theory of the judicial tug of war to the nation’s courts. This chapter examines the federal courts, the most politically important courts in the entire American judiciary. As we show in this chapter, fights over federal courts appointments illustrate the tense tug of war between the national bar and politicians. Given that federal courts appointments operate with the advice and consent of the US Senate, an elected body whose political leanings do not dovetail with the bar’s, we expect to see (and we document using empirical data) an ideological divergence. In the last decade, this divergence manifests itself in a federal judiciary that is substantially more conservative than is the national bar. As we show, this also creates supply-side incentives among legal elites. Specifically, conservative graduates of elite law programs have a much higher probability of becoming a judge (of any kind); their relative scarcity in law schools and in the academy, furthermore, has increased the importance of conservative-leaning legal associations, such as the Federalist Society.