Several scholars within the public law field of political science have compiled data on differences in the backgrounds of American judges, but without attempting to correlate these characteristics with differences in the decisions of the judges. Other scholars have compiled data on the different decisional tendencies of American judges, but again without correlating these tendencies with differences in the backgrounds of the judiciary.
The first purpose of this paper is to explore the empirical relationships between one background characteristic and fifteen areas of judicial decision-making. Political party affiliation was chosen as the one background characteristic because it is of particular interest to political scientists, and is an especially useful indicator for predicting how judges on bipartisan appellate courts will divide when they do not agree. The second purpose is to explore empirically the effectiveness of three judicial reforms (judicial appointment, non-partisan ballot, and long term of office) which are frequently advocated as means of decreasing partisan influences in judicial decisions.
The writer gratefully thanks the Political Theory and Legal Philosophy Committee of the Social Science Research Council for providing the funds for his study of the influence of judicial backgrounds and attitudes on judicial decisionmaking, of which this paper is a part. Thanks are also due Professors Rosenblum, Guetzkow, Snyder, and Milbrath of Northwestern for their suggestions relevant to the completion of the larger study.
1 Schmidhauser, John, “The Justices of the Supreme Court: A Collective Portrait,” Midwest Journal of Political Science, Vol. 3 (1958), pp. 1–57; Ewing, Cortez M., The Judges of the Supreme Court, 1789–1937 (Minneapolis: U. of Minnesota Press, 1938); Mott, Rodney, “Judicial Personnel,” Annals of the American Academy of Political and Social Science, Vol. 167 (1933), pp. 143–155.
2 Schubert, Glendon, Quantitative Analysis of Judicial Behavior (Glencoe, 1959); Pritchett, C. Herman, The Roosevelt Court: A Study in Judicial Politics and Values, 1937–1947 (New York, 1948); Ulmer, S. Sydney, “The Analysis of Behavior Patterns on the United States Supreme Court,” Journal of Politics, Vol. 22 (November, 1960), pp. 629–653.
3 For a more detailed analysis and defense of the research design than can be given here see S. Nagel, “Testing Relations between Judicial Characteristics and Judicial Decision-Making” (mimeographed, presented at the 1961 Midwest Conference of Political Scientists). Copies available on request from the writer.
4 The term is used here as a synonym for “highest court” or “court of last resort.”
5 Charles Liebman, ed., Chicago, American Directories; sometimes referred to below as the Directory.
6 Wheeler Sammons, ed., Chicago, Marquis, 1954, 1956, 1958.
7 For an analysis of the distribution of political party affiliation among the judges, see Nagel, S., “Unequal Party Representation on the State Supreme Court,” Journal of the American Judicature Society, Vol. 45 (August, 1961), pp. 62–65. Only 11 per cent of 313 judges gave no party affiliation.
8 For a more exact description of each field of law included, see Nagel, S., Judicial Characteristics and Judicial Decision-Making, Ph.D. dissertation, Northwestern University, Evanston, 1961.
9 Commonwealth v. Burdell, 380 Pa. 43 (1955); Commonwealth v. Edwards, 380 Pa. 52 (1955); Commonwealth v. Mackley, 380 Pa. 70 (1955); Commonwealth v. Grays, 380 Pa. 77 (1955); Commonwealth ex rel. Dunn v. Ruch, 380 Pa. 152 (1955); Commonwealth ex rel. Lane v. Baldi, 380 Pa. 201 (1955); Commonwealth v. Chaitt, 380 Pa. 352 (1955); Commonwealth v. LaRue, 381 Pa. 113 (1955); Commonwealth v. Lane, 381 Pa. 293 (1955); Commonwealth v. Thompson, 381 Pa. 299 (1955); Commonwealth v. Mason, 381 Pa. 309 (1955); Commonwealth v. Cisneros, 381 Pa. 447 (1955); Commonwealth v. Bolish, 381 Pa. 500 (1955); Commonwealth ex rel. Matthews v. Day, 381 Pa. 617 (1955); Commonwealth v. Farrow, 382 Pa. 61 (1955); Commonwealth v. Capps, 382 Pa. 72 (1955); Commonwealth v. Wable, 382 Pa. 80 (1955); Commonwealth ex rei. Taylor v. Superintendent of the County Prison, 382 Pa. 181 (1955); Commonwealth ex rel. Bishop v. Maroney, 382 Pa. 324 (1955); Commonwealth v. Thomas, 382 Pa. 639 (1955); Commonwealth v. Moon, 383 Pa. 18 (1955).
10 Commonwealth v. Edwards, 380 Pa. 52 (1955).
11 Yuker, Harold, A Guide to Statistical Calculations (New York, 1958), pp. 64–66; and Siegel, Sidney, Non-Parametric Statistics for the Behavioral Sciences (New York, 1956), pp. 13–14.
12 Chillicothe Telephone Co. v. Public Utilities Commission of Ohio, 163 Ohio 398 (1955); State ex rei. Kearns v. Ohio Power Co., 163 Ohio 451 (1955); State ex rel. Selected Properties v. Gottfried, 163 Ohio 469 (1955).
13 Cassar v. Appeal Board of the Michigan Employment Security Commission, 343 Mich. 380 (1955); Pazan v. Michigan Unemployment Compensation Commission, 343 Mich. 587 (1955).
14 Piantanida v. Bennett, 17 N.J.2d 291 (1955); Morris v. Hermann Forwarding Co., 18 N.J.2d 195 (1955); DeMonaco v. Renton, 18 N.J.2d 352 (1955); Lester v. Elliot Bros. Trucking Co., 18 N.J.2d 434 (1955); Green v. DeFuria, 19 N.J.2d 290 (1955); Secor v. Penn Service Garage, 19 N.J.2d 315 (1955); Buccheri v. Montgomery Ward and Co., 19 N.J.2d 594 (1955).
15 Schwartz v. Kansas City Southern R. Co., 349 U.S. 931 (1955); Anderson v. Atlantic Coast Line R. Co., 350 U.S. 807 (1955); Zientek v. Reading Co., 350 U.S. 346 (1955); Cahill v. New York, New Haven, and Hartford R. Co., 350 U.S. 898 (1955).
16 Frankfurter was classified as an independent; he gives no party affiliation in any recent biographical directory.
17 MacIver, Robert, The Web of Government (New York, 1951), pp. 215–19.
18 Turner, Julius, Party and Constituency: Pressures on Congress (Baltimore, John Hopkins Press, 1951), p. 60.
19 Ibid., p. 66.
20 Campbell, Angus, Gurin, Gerald, and Miller, Warren, The Voter Decides (Evanston, 1954), pp. 118–19.
21 The 313 judges studied in this paper were mailed attitudinal questionnaires based on the “liberalism” test of Hans Eysenck's, The Psychology of Politics (London: Routledge and Kegan Paul, 1954), pp. 122–24. The data compiled for the 119 judges who responded tended to show that on bipartisan courts having both high-scoring (liberal) judges and low-scoring (conservative) judges, there is a positive correlation between (1) being a Democratic judge as contrasted to being a Republican judge, and (2) being a high-scoring judge.
22 The mailed questionnaire survey just mentioned tends to show that the difference between the decisional propensities of Democrats and Republicans decreases when liberalism is held constant. Thus when only liberal Democrats and liberal Republicans were matched, there was virtually no correlation between (1) being a Democrat as contrasted to being a Republican and (2) being above rather than below the average decision score of one's bipartisan court in criminal cases. Likewise when only conservative Democrats and conservative Republicans were compared, there was also virtually no correlation between (1) being a Democrat and (2) being above the average decision score of one's bipartisan court in criminal cases. The sample sizes involved in these analyses were, however, exceedingly small.
23 Elected and appointed judges were sorted out from the entries and the designation table in the Directory.
24 These probabilities were calculated by using a chi-square formula with a Yates correction in view of the skew toward voting in accordance with party patterns. See Guilford, J. P., Fundamental Statistics in Psychology and Education (New York, 1956), pp. 207–208, 228–239.
25 Judges elected on a non-partisan ballot were identified by first determining, through the Directory entries, in what year the most recent term (prior to 1955) of each judge began and then checking the judicial election law for his state in that year in the Book of the States (Chicago: Council of State Governments, 1938–1955).
26 The terms of office were traced through the same sources as the methods of selection.
27 This hypothesis was partially tested by using the attitudinal data mentioned in footnote 21 to see if any correlation existed between (1) being an appointed rather than an elected judge and (2) voting contrary to rather than in accordance with one's value position in criminal cases. The correlation, as hypothesized, was practically zero with a sample of 65 judges.
28 Schubert, Glendon, Constitutional Politics: The Political Behavior of Supreme Court Justices and the Constitutional Policies that They Make (New York, 1960), pp. 37, 711–712.
29 Courts of Last Resort of the Forty-Eight States (Chicago: Council of State Governments, 1955), Table 4.
30 The mailed questionnaire survey mentioned in footnote 21 showed no positive correlation between (1) being an appointed judge rather than an elected judge on a bipartisan court and (2) being a conservative Democrat or a liberal Republican rather than a liberal Democrat or a conservative Republican. The slightly negative correlation, however, was only a −.04 phi coefficient and was only based on 25 judges.
31 Courts of Last Resort of the Forty-Eight States, op. cit. supra, note 29.
* The writer gratefully thanks the Political Theory and Legal Philosophy Committee of the Social Science Research Council for providing the funds for his study of the influence of judicial backgrounds and attitudes on judicial decisionmaking, of which this paper is a part. Thanks are also due Professors Rosenblum, Guetzkow, Snyder, and Milbrath of Northwestern for their suggestions relevant to the completion of the larger study.
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