July 28, 2022

Newswise — Washington, DC—Recent court decisions about abortion rights, gun control, and environmental protection have inflamed public opinion and renewed claims that federal judges are “politicians in robes” rather than disinterested courtroom umpires. These claims are so difficult to test that researchers long ago turned to the “politicized departure hypothesis” (PDH) to test political behavior by judges.

According to PDH, as their careers end, politicized judges tend to reveal their bias by arranging to retire under a president of the same political party as the president who first appointed them, thereby giving that party the right to nominate their successor. But PDH studies have focused on the Supreme Court and appeals court jurists, ignoring district court judges who are the great majority of federal judges appointed under Article III of the U.S. Constitution. Further, existing PDH studies rely on statistical modeling to justify comparisons between judges whose personal characteristics might affect the timing of their retirement.

In their new study, “Judges as Party Animals: Retirement Timing by Federal Judges and Party Control of Judicial Appointments,” appearing in the August 2022 issue of The American Sociological Review, authors Ross M. Stolzenberg, Professor of Sociology at the University of Chicago, and James Lindgren, Professor of Law at Northwestern University, observe that previously unnoticed data patterns permit new statistical tests (“regression discontinuity” analyses with “difference in differences” comparisons) that avoid key methodological limitations of previous PDH studies, and which extend those analyses to the entire federal judiciary appointed under Article III of the U.S. Constitution. Necessary conditions for these new tests occur shortly before and after 11 presidential elections between 1920 and 2018. In 10 of these 11 periods, results are as predicted by PDH.

Findings were consistent with previous tests of PDH, showing that “Article II judges are more likely to retire when their party’s candidate wins the election and sits in the White House, than immediately earlier, in the pre-election period, when the president is of the other party,” and ultimately lending credence to PDH.

In addition, the authors observed “stronger average gross PDH effects for Republican appointees than for Democratic appointees,” but caution that, because these results were not hypothesized in advance that they are “harder to distinguish from statistical noise than if the were predicted a priori.” For that reason, future research “might consider the hypothesis that Republican presidents are more likely than Democrats to appoint party stalwarts, such as individuals who have run for public office as party candidates.”

So, are Article III judges influenced by politics while in office? The authors contend that, if it is apparent that judicial careers are politically vetted at their start, and that, as reinforced by their new research, judges themselves tend to behave politically, even at the final moment of their full-time courtroom careers, “we think there is reason to believe that politics has been an active influence on many of these judges in the interim.”



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