We conclude the book in Chapter 9 by describing what we see as current trends in law and politics and how these might shape the courts in years to come. Indeed, year after year, the political nature of the judiciary has, if anything, become increasingly salient – particularly given the highly polarized climate of American politics. We highlight two ongoing factors that are likely to exacerbate the judicial tug of war: (1) a rightward shift in the ideologies of pertinent political elites and (2) a leftward shift in the ideologies of the elite legal establishment and law graduates. These two forces are likely to create even more conflict over judicial appointments and more attempts at judicial reform. We do not see reason only for pessimism, however. Increased ideological diversity in the judiciary, even though a result of increased ideologically based selection, can help create a more ideologically diverse judiciary than we might otherwise expect.

As our discussion in Chapter 6 makes clear, how judges are selected shapes the power dynamics of the judicial tug of war. This makes judicial selection itself a source of heated conflict, the subject we take up in Chapter 7. We use our judicial tug-of-war framework to explore how the parties respond or try to change existing judicial selection mechanisms. Specifically, as we show, the greater the misalignment between the ideological preferences of attorneys and politicians, the greater the incentives political elites will have to introduce ideological considerations into the judicial selection process. Understanding this dynamic, we argue, is key to both explaining and predicting attempts at judicial reform: Under current ideological configurations, conservatives will, depending on how liberal they perceive the bar to be, back reform efforts oriented toward partisan elections and executive appointments, while liberals will work to maintain merit-oriented commissions. We explore the contours of this predictive framework with three illustrative case studies: Florida in 2001, Kansas in 2011, and North Carolina in 2016.

We pivot in this part to discussing the other key player in the judicial tug of war – political elites. Chapter 4 begins by considering how the interests of political actors and those of the bar clash over the captured judiciary. Specifically, over time, political actors and lawyers have drifted apart ideologically, resulting in tension. This mismatch, we argue, sets the stage for contemporary fights over the politicization of the judiciary, over activist judges, and over the meritocracy of the judiciary – the judicial tug of war. We also note in this chapter that an increased interjection of “politics” into the selection of judges, although perhaps unappealing to many Americans, need not necessarily be undesirable; after all, having a judiciary that represents a greater variety of political and ideological interests (including conservative ones), and not just the bar’s, might be the most desirable from a normative perspective.

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.

Chapter 1 introduces our argument by considering the important recent case of US Supreme Court Justice Antonin Scalia. When Scalia died in early 2016, the expectation was that then-president Barack Obama would name his successor; however, Senate Republicans fought back and prevented Obama from naming well-respected appeals judge Merrick Garland to the Court. This audacious partisan maneuvering illustrates key questions about the increasing polarization of the courts. For example, why have Republicans blasted “activist judges,” and why do they support attempts at “reforming” the judiciary – even as it risks public criticisms of interjecting partisanship and politicization? On the other side of the spectrum, why have Democrats decried Republicans’ tactics, choosing to focus instead on ostensibly nonpartisan characteristics such as pedigree and experience? Our answer to these questions is a new framework for thinking about our nation’s courts – the judicial tug of war. The judicial tug of war not only explains current political clashes over America’s courts ¬– such as the fight over Scalia’s seat – but also explains the balance of power between party leaders and the nation’s lawyers. We use this framework to explain the important question of how the courts have increasingly become a highly sought-after political prize.

How has a profession that has made itself so essential to the workings of every aspect of the political process – including the regulatory process – remained unburdened by government oversight and accountable only to itself? This is the question we address in Chapter 3. As we document in this chapter, the power of the bar led to an uneasy alliance between political actors; the bar sought more and more autonomy and, in line with a long-standing and natural connection with the judiciary, began to professionally “capture” the judiciary. It did so not only by monopolizing the candidate pool of potential judges but also by instituting rules about how lawyers (i.e., future judges) should be educated, implementing codes of judicial conduct, and, ultimately, making binding recommendations on how judges should be selected. In turn, the government has entrusted the “captured judiciary” with regulatory power over the legal profession. As we show through both qualitative and quantitative evidence, this symbiotic arrangement furthered the bar’s political and economic power.

Federal courts only represent one kind of selection mechanism – appointment by the executive with the advice and consent of a legislative chamber. Because selection mechanisms vary across different jurisdictions, Chapter 6 explores how patterns may vary with regard to state courts. Indeed, part of our overall argument is that different selection mechanisms can both restrain and facilitate the incorporation of politics into judicial selection. As we show, appointments systems – like the appointments process used to name federal judges – are more sensitive to the needs and preferences of the political parties; by contrast, systems that lean toward merit-oriented criteria – including systems that are reliant on merit commissions, nonpartisan bodies, and local and state bar associations – are more sensitive to the needs and preferences of the bar. Thus, given the tension between political actors and the bar that characterizes the judicial tug of war, certain judicial selection systems may (or may not) be favorable to the different players. In other words, judicial selection mechanisms set the rules by which the tug of war is played.

In Chapter 8, we turn to a slightly different question, but one that has occupied much public interest – the topic of judicial polarization. Looking at the federal courts, we document how our framework of the judicial tug of war can explain ideological polarization in the courts as politicians attempt to replace judges with ones who are more ideologically compatible. In addition, we show that greater polarization leads to greater judicial conflict, including more dissenting opinions and increased intra-court uncertainty. To this extent, the American judiciary has followed the general trend in American politics toward increased partisan conflict and polarization, facilitated by the tension between political and legal elites.