Lawyers control the American court system, stock the administration, and even dominate our legislatures. They designed the institutions to ensure they’d continue to run the show. But today they face a political challenge because lawyers are far more liberal than elected officials or citizens. Conservative politicians are fighting back and making gains. Adam Bonica and Maya Sen find increasing polarization in the federal courts and strategic conflict between lawyers and conservative politicians in the states. But lawyers still pass legislation to benefit themselves and organize the judiciary to bar other entrants. It’s no accident the U.S. stands out as a highly litigious society and legalistic state.
Guests: Adam Bonica, Stanford University; Maya Sen, Harvard University
Study: The Judicial Tug of War
Transcript
Matt Grossmann: Why lawyers rule American politics, this week on the Science of Politics. For the Niskanen Center, I’m Matt Grossmann. Lawyers are involved in most major decisions in the United States. They control the courts in our highly litigious society. They stock the administration and even the legislatures, and that’s no accident. Lawyers set up the institutions to ensure they continue to run the show. Today, they face a political challenge because they are far more liberal than elected officials or citizens. Conservatives are fighting back. This week, I talked to Adam Bonica of Stanford University and Maya Sen of Harvard University about their Cambridge book, The Judicial Tug of War. They tracked the fights between politicians and lawyers to select federal and state judges, finding increasing polarization in the federal courts and strategic action in the states. They say the fights haven’t yet changed our fundamental lawyer rule. Attorneys still pass legislation to benefit themselves and still organize the judiciary to keep it under their control. I heard Bonica and Sen at a recent conference on American political economy and followed up to hear more. Our conversation started with a summary of the book from Maya Sen.
Maya Sen: I think there are basically two parts to the book. What we do in the first part is we document and show the sheer power of the legal profession over all aspects of politics. By that we mean, we really do mean all aspects of politics. We mean not just the judiciary, but also the legislative branches and the executive, and because the legal profession is so politically powerful, it’s been able to extract a lot of its preferred policy positions across a wide variety of issues, but specifically on issues that are important to it as a profession. The United States, which has the most lawyers per capita of any country in the world, also has the highest revenues per attorney. It also turns over a lot of its regulatory state to the judicial system. It also has the highest share of people incarcerated and having to litigate for their freedom. That’s sort of the first half of the book.
Then the second half of the book we transition and look specifically at the judiciary. The judiciary is really interesting because we’re a country where we’ve ceded basically a third of government, so the entire judiciary, over to the legal profession. The second half of the book really questions what that means for the judiciary and what that means, given that the legal profession has its own viewpoint and its own preferences. Oftentimes, these jive with political elites, but oftentimes the legal profession is in a very distinct tension with political elites. When you see that tension, when political elites are at odds with the legal profession, that’s when you see a lot of what we would call like attempts to judicial reform. Right now, one of the things we document in the book is that right now, what you really see a lot of is political elites in the Republican party really butting heads with legal elites across the states. A lot of that tension and conflict has boiled over into reforms at the state court level. That’s something that we document very extensively in the book.
Matt Grossmann: Adam, give us some of the backstory behind the book. How did your collaboration come together? What roles did you serve? How did the book come to be?
Adam Bonica: Yeah, so Maya and I, I think we met that in 2013 when I was out at University of Rochester for a week long sort of academic residence program and Maya was there. I gave a talk on the work I was doing on measuring [inaudible 00:03:43] given campaign finance measures. Maya had the good sense that it could be really useful to study the courts. I was sort of becoming of the opinion that the courts were going to be where the action was for the foreseeable future here in American politics. This really worked as a very sort of natural collaboration in terms of our interests and has been a very sort of productive and rewarding research agenda so far.
I had to count them up, we wrote about nine articles together in addition to the book. The book is really a culmination of a lot of what we had learned, and we wanted to expand upon beyond sort of the more traditional empirical work that we had been doing and really sort of speak more generally about what we thought was really happening within the American judiciary and how politics was really pervading it in ways that are really measurable and consequential for American politics.
Matt Grossmann: It was sort of described as two books in one at the conference that we attended recently, one about sort of the politicians versus the lawyers, especially in the states and one about the overall power of lawyers. Which of those came came first and how did they join forces?
Adam Bonica: The power of the lawyers sort of came second, but it sort of emerged out of just this general observation that lawyers were so pervasive in so many areas of American politics, not just represented in halls of elected power and in the executive branch. Lawyers are also incredibly important political actors on the ground among activists and especially among donors. Part of the reason that we’re able to study lawyers using campaign finance measures is because they’re so active in politics as a group and that emerged as a I think a more important general, more a point that really has a lot more to do with sort of American political development and the way our institutions are structured and something that we really wanted to elaborate on in the book, or on the book. Much of the work on sort of measuring sort of the ideology of judges and looking at how polarization was effecting courts, we had touched on but it also tied into these questions about the institutions are responding to these ideological incentives among these actors. You see these really interesting dynamics that start to emerge once you’ve sort of uncovered that.
Matt Grossmann: Maya, you said the US stands out for the role of lawyers, both in elected branches and the judiciary. Give us a little bit more of that comparative flavor, just how overrepresented are lawyers in American government relative to elsewhere, and why does that matter?
Maya Sen: On the first point, it’s just undoubtedly true that lawyers are way overrepresented. Other professions, but kind of even compared to people that you assume are already very over-represented. One statistic that we have in the book, I know this is one of Adam’s favorites, because I’ve heard him say this a bunch is that millionaires are overrepresented in the halls of power in this country. We always kind of like attack that and we critique that and we think that’s not very good thing, but lawyers are even more overrepresented than millionaires are. You have a better chance of landing in Congress being a lawyer than you do being a millionaire. It’s just like, they’re so overrepresented, they’re something like, I think in the book the statistic is something like 0.4% or maybe even less of the voting electorate, yet they’re something like between 40% and 60% of Congress, depending on which Congress you look at. It’s kind of absurd.
When we talk about studying politicians, which is something we do a lot of in political science, what we’re really talking about is basically studying mostly lawyers. Having a sense, and one of the things that Adam and I have done a lot of thinking about is kind of like trying to understand what it is about the environment in which lawyers are trained and grew up in and develop intellectually that makes them a little different in the way that they approach the politics of governing. Another thing that’s kind of interesting about this, and then I’ll actually answer the question, but another thing that’s interesting about this is that political scientists actually used to study this as a concept. There are books that have been written about lawyer legislators in the 50s and 60s, and then we kind of stopped studying it. There are a couple of really influential books from the 50s, 60s, I think maybe even early 70s that came to the conclusion that lawyer legislators aren’t really very different than other legislators. Then, the research agenda kind of died.
I think to some extent, Adam and I are picking it up a little bit because, and I know we’re going to talk about this a little bit later, but because we do see differences now in what lawyers bring to the table in terms of governing. To answer the question actually, so why does this matter? Well, it matters because lawyers bring two things. One is they bring a legalistic approach to policymaking that’s rooted into how they’re trained and how they think about problem solving. They think about problem solving as happening through the law and procedure. One of the examples that we talk about in the book is how much of American regulation and policymaking actually happens not just through the courts, but through the process of what Bob Kagan would call adversarial legalism. Right?
It’s basic things like, and this is not our argument, this is an argument that’s well-established in the literature, but even things as simple and straightforward that in other countries would be done and handled through the regulatory process are handled through litigation like consumer protection. Right? That’s handled in large swaths of this country through litigation. That’s very unusual. A lot of things having to do with the criminal justice system are handled through the courts as opposed through like public health or mental health interventions. Just the way that we solve problems in this country, we tend to think of the courts is kind of one of the first lines for policymaking even if we don’t call it making, that’s what we’re doing, whereas in other countries that would be handled through different processes. That’s one.
Then the other thing, the other way in which lawyers really leave their mark is that they have their own interests, like in terms of their own professional interests. I mentioned this earlier, but just to kind of echo it one more time, we see compared to other countries that have fewer lawyer legislators, we see that in this country, law firms are by far more profitable like on a per capita basis, we have higher litigation costs. We have more people incarcerated and put in jail by a system that prioritizes the legal process and kind of criminal rights of defendants and prosecutors. That has downstream effects throughout all components of our economy.
We show in the book also that the United States has the highest levels of inequality, and actually this varies along with a number of lawyer legislatures in our national assembly. The more lawyers you have in your national assembly, the higher your levels of inequality in a country, and also like in a state. The more lawyers you have in your state assembly, the deeper the inequality in your state. It’s not just that lawyers are kind of integrating their worldview of how policy is made, but they also have distinct policy preferences that are shaped out of the experience of wiring.
Matt Grossmann: Adam, you also show that the lawyers, especially now, are much more liberal than the American public and American politicians overall, and especially those from the top law schools. Conservatives, in order to get even an equal or near equal share on the judges have to practice pretty considerable affirmative action for conservative judges. We’ve had on several people in the past talking about the conservative legal movement and the Federalist Society. Listeners may be familiar with that sort of story, but one reading of your book is that they’ve only kind of fought to a draw if that in the federal judiciary, because of this disadvantage that they start from. Is that a reasonable reading?
Adam Bonica: On the first part, yeah. On the second part, in many of the state conflicts, I think that’s accurate, but it’s hard to understate the success that the Federalist Society has had. What we do find is we’re starting with this observation, that to become a judge in United States, we use a system we inherited from the English legal system, which is that you elevate members of the bar to the bench. Basically, to become a judge, you first have to become a lawyer. Lawyers then become the candidate pool of potential judges that one can select. The underlying ideological or political distribution of that population becomes far more important when we’re talking about judicial selection. Lawyers in the contemporary American society tend to be left of center. By that, we’re talking about their revealed preferences, specifically how they donate, or which party they’re registered with, and sort of their voting practices. We find that about two thirds of lawyers are left of center.
We see pretty strong trends among younger lawyers that it’s even higher. At elite institutions, like Yale Law or a Stanford or Harvard that have provided a lot of the federal judges, we’re looking at among people graduating in recent years, 80% to 90% of them are identifying as Democrats. This does present a bit of a problem for conservatives if they want to talk about electing qualified judges, which often we just mean not what a general conception of what qualified would mean, but it has to do a lot with sort of pedigree, like where you went to law school, and sort of how you’ve been trained and whether you’re seen as sort of a high quality lawyer. There’s a much smaller population of conservatives that come from this sort of ecosystem. The idea that there’s some sort of affirmative action really is reflecting the fact that demand for conservative lawyers is higher relative to supply, versus Democrats.
If you were a Democrat who graduates from one of these elite law schools versus a conservative, your chances of becoming a judge or a clerk for that matter are way lower. It’s a huge advantage to get a clerkship if you’re a conservative and it’s an even larger advantage, we estimate that it’s about 10 to 12 times more likely that you will become a federal judge if you are a conservative coming from one of these elite law schools. That’s a pretty big differential. Right? It really is like there is more political demand for conservative judges relative to the population of conservative lawyers. This is sort of why we see the Federalist Society emerge, it’s to serve this function to sort of groom and prepare a larger number of conservatives to go into the judiciary, because if there wasn’t this sort of counterbalancing that was going on, it would be even more difficult for conservatives to recruit that many judges. I think when we’re looking at the federal courts specifically, there are not many spots relative to the population, and you only need one out of a hundred lawyers to become a judge in the federal law book populate the entire federal judiciary. And so it’s not like it’s a traditional labor supply problem, but a lot of conservative take a pretty big pickup. You could be going into a law firm and one thing we find is that conservative lawyers tend to seek out higher paying positions, relative to more liberal lawyers. And so that’s where a lot of this tension is coming from. But to say that there’s a type of affirmative action that’s going on, it does seem to be an accurate portrayal, even though it’s not a formal institutional feature.
Matt Grossmann: So Maya, you also look at the direct occupational interests of lawyers and find that lawyer legislators are more likely to vote for them. And that the bar associations, when these court cases. How should we compare that to say business owners or farmers or insurance agents? Is this just a case of a profession that’s overrepresented and out for its own interests? Or should we connect that to this broader pattern of the role of litigation or the legal state in the US?
Maya Sen: So, I think you scooped my answer a little bit, because I don’t think those two things are that distinct. So I think one subtlety in what Adam and I have both said that’s worth emphasizing is that the legal profession now leans quite a bit to the left, particularly among elite law school graduates, but that really wasn’t the case historically. And historically the legal profession was actually very conservative. Coming through the mid part of the 20th century, it was very conservative. So, it stood for the status quo. It stood for business interests. And so moving toward increased legalism, or adversarial legalism, or an administrative state that was tied up with a judicial structure, was very much operating hand in hand with an industry that also had a lot of connections with business and was ideologically very favorable to conservative interests, business interests. So that’s important to mention.
So the two interests were really well connected. I think in more modern times the interests of the profession have moved to the left, but the business interests and the professional interests have remained somewhat. So in terms of where this leaves us, I think now you have a profession that has very strong feelings about the legal procedures and the process of involving legal adjudication in policymaking. But is a bit less, I will say this, I think maybe Adam will disagree with me on this, but it’s a little bit more uncomfortable with the close ties to business per se. This is not something we talk about in our book, but I think now there are conversations happening within legal leads about, for example, whether you should keep appointing corporate lawyers to the federal bench or whether you should actually be looking at public defenders or government lawyers.
And those conversations are starting to happen in a way that points to even a division with a legal ranks around this issue. So how tied up is the industry with these business interests will vary, but people are becoming aware of that and the interests are starting to decouple a little bit. I would say that this conversation though is pretty recent. So I think as someone who studies the courts separately from this project and does a lot of work on diversity on the courts, I would say this issue of having a more diverse pool of lawyers occupy seats on the bench, on the federal bench, has only been really taking off basically in the last two or three years. So I would say this is pretty recent, this awareness about how strongly business oriented and how small conservative the profession is. People have only started talking about it, I think, fairly recently.
Matt Grossmann: Adam, your chance to disagree, or maybe address this question about at the conference we did have folks arguing, lefty folks skeptical of your measures maybe, arguing that this is a profession that earns its money from representing business primarily. And so maybe what we’re not really getting at their real interests or ideology. So what do you think?
Adam Bonica: No, I don’t disagree at all. I think it is a bit complicated by this tension that Maya outlines. Those comments that were raised during the conference, I don’t think they were directed at, say, public defenders or public interest attorneys. They were directed mostly at the type of lawyers who were working at big law firms. And it’s hard to not conclude that if you go and work at a big law firm, and this is something that everyone who has done so would agree with, that most of your time, your primary function in society, is to advocate and represent the interests of wealthy individuals and corporations that have enough money to afford your very expensive services. Many hundreds or even thousands of dollars per hour. That precludes much of the population.
And I think that this tension is very real, especially among younger lawyers and actually Deborah Rhode had written pretty extensively about how this tension created the type of cognitive dissonance within a profession. It was actually very bad for mental health and it was generating a lot of turnover. So I think it’s a very real thing that there’s, on one hand, that’s how the industries oriented. That’s how you make a lot of money as an American lawyer, by representing these very wealthy interests. On the flip side, I think if you did a thought experiment and you went up to most big law firm associates working at these fancy firms and said, “You could have the same salary and career advancement opportunities doing pro bono work rather than working for these clients.” I’m sure most of them, or many of them at least, would be very interested in doing so. And a lot of the turnover you see in these positions are people leaving to do more public interested work because that wasn’t necessarily why they initially entered the legal profession.
So I think it really highlights an important tension within the profession itself. That I think is something that the profession has been grappling with for a very long time. This was the type of discussion that was being had a century ago, talking about the orientation of the legal profession, that you had this business oriented wing, and then this other function that services public facing profession. And how do you negotiate those two different sides when they are often very much at odds with each other? And so I think these questions about whether lawyers are more conservative [inaudible 00:23:25], I think they’re pointing to a specific type of attorney that’s very prominent. And I think the profession in itself is performing a quintessentially conservative role in society, protecting the interests of wealthy interests.
And so that being said it’s also the case that we’re talking about whether they were a leftist set of political actors. And I think what we’re showing is they’re more Democrat. And actually we do find that lawyers who work at big law firms are more conservative, on average, than the profession at large, slightly so. We you also have to take into account that mostly big law firms are located in very large urban centers like New York, DC, San Francisco, LA, Chicago. That’s where the vast majority of these lawyers are actually working. So relative to the types of places they are living, they’re actually a bit more conservative that you would expect. They’re also not particularly populous as a group.
And that’s something the measures left-right are not captured very well. This idea of elitist versus populous politics. My guess would be that lawyers on average as a profession would be far closer to the elitist side of both parties than what we’re seeing, than [inaudible 00:24:57] for instance. And so I think the measures do read out a cultural disposition as well. It probably is also closer to what we would think as small seat conservative.
Matt Grossmann: Maya, you go all the way back to the founding and you mentioned that lawyers were more conservative in the past to the extent that you have measures of the lawyer legislators. They actually were even more, a bigger part of the legislatures in the past. So, how much has changed? And how much of this story is about the other kinds of processes that you study, where it’s a very long-term process and it was locked in long ago versus this is an ongoing role of lawyers in American politics?
Maya Sen: So I think it’s changed quite a bit over time. There are a couple of ways in which it’s changed. So first of all, the share of legislators who are lawyers has gone down over time, subtly. Maybe not as much as you’d expect. But it’s gone down in ways that I think are fairly interesting from a partisan perspective. So we talked about how it used to be a conservative profession and now it’s actually a fairly liberal one and increasingly so. And so you see that actually in the halls of power when you note that more of the lawyer legislators are actually Democrats now than they are Republicans. And you can see this in our last five presidents. In the last five presidents, we’ve had three Democrats, two Republicans. All the Democrats have been lawyers or trained as lawyers and the two Republicans have been business owners in some capacity, or businessmen in some capacity.
And that general trend, that partisan trend, didn’t really used to be the case. You’d see lawyers coming, representing both parties, maybe even more Democrats coming out of the South, for reasons that I’m going to talk about in a second. But now it is the case more and more that the lawyers are increasingly coming from the democratic ranks and the Republicans are drawing more of their representation from small business owners in other professions. So it’s changed in that respect. It’s become more partisan in that sense.
The other way in which it’s changed, and this is something we do talk about in the book but I think there’s more room for exploration here, is that the law was really very much viewed as a gate keeping profession to politics. So because lawyers were so overrepresented in Congress and the state assemblies, and obviously exclusively overrepresented in the courts, if you, as a black person, or as a woman, or as someone who’s Jewish, or any other kind of religious minority, if you couldn’t go to law school, then you couldn’t become a judge or you wouldn’t be elected to Congress.
So a huge way in which this has changed is in the desegregated law schools in the 40s and 50s and 60s. And then law schools that really started accepting women as co-equals, which really didn’t happen until the 70s and 80s. So one of the things we know in the book, just picking up on gender as one example, is that there’s a pretty significant lag in women entering Congress. That basically correlates 20 years before with women entering law schools because law school was basically a gateway into politically elite positions, not to mention judgeships.
So that’s changed a lot. So now we have majorities of law schools at the elite level are actually majority female now. There’s solid representation of racial and ethnic minorities. Although we can have a longer conversation about whether that’s enough, given the important and pivotal role that law schools play in fomenting and culturing political talent.
So you would expect these trends to project forward, one would hope. Although it’s not really clear to me that will automatically be the case given where we’re going or what people’s preferences are. But I think that’s also something that’s changed over time. And going back to a theme that we’ve been hitting on again and again, the increased diversification of law schools probably has had a role to play in how left leaning they have gravitated over the last 10 or 20 years. So they’re increasingly diverse institutions, not just in terms of gender, but also in terms of race and religion in a way that they never were in the middle part of the 20th century.
Matt Grossmann: And what about the long-term influence issue? If we were to do a counterfactual where the lawyers suddenly lose influence in Congress, I wouldn’t imagine that we would do administrative procedures differently in the United States. So how important is that continued ongoing influence versus the historical influence?
Maya Sin: So this is extrapolating from our book, but I think a lot of these things have become deeply embedded in American exceptionalism, or thinking about American exceptionalism. So I don’t think, for example, adversarial legalism is going to go anywhere anytime soon. So even if you wiped all the lawyers off of a map, off of congressional maps, I don’t think any of those institutions are likely to change anytime soon. In terms of the counterfactual, what would you do in the absence of lawyers having this power? I think the balance of power is shifting more and more towards small business owners. I don’t see that as a constituency that has anything strongly to gain from changing those sorts of institutions. But I don’t know if Adam has different projections.
Adam Bonica: That all sounds about right to me, in terms of institutions are generally pretty stable things. But I’m just going to add to one of the interesting things. US has had this very prominent political class dominated by lawyers for a very long time. It’s worth pointing out that in most countries, lawyers are overrepresented, relative to their size of the population. But in some countries they’re not very well represented at all. So if you look at the Netherlands, for instance, when we looked at a number of lawyers and legislators, there was only one at the time. And so there is this idea that law and politics are really closely connected. You need to have a lot of input from the legal system to properly do politics. But it’s hard to argue that the Netherlands is in much worse shape than the United States right now. And so I think there were a lot of ways to structure your democratic society.
And I think over the long term, there would be more pressure pushing towards what would presumably be a little bit more like the European system, where there is government control of regulatory bodies that do a lot in regulatory function. Whereas in the United States, as Maya had mentioned, much of it is litigated. And so I think there are questions about which is a more effective system of regulation. I think there are pros and cons of each, but I think corporations, at least, would probably say that they’re happier with the American system right now than they are with say the EU, I wanted to mention [devolution 00:31:58].
Matt Grossmann: So in the States, you do have leverage to look at changes and how judges are selected, and you find that Republicans have been favoring partisan elections and appointments from elected officials, but that they sort of haven’t gotten as far as they could to move judges to the right. And it seems like there’s a long way to go, that liberals should be prepared for more action there, opportunities by Republicans to move the courts, rightward, but from a liberal base in most states. Is that a reasonable reading?
Adam Bonica: Yes, I think it is. In fact, so the Brennan Center has collected a list of 42 bills that have been introduced since the 2020 elections predominantly by Republican state legislators, attempting to do exactly that. And one of the more sort of really interesting and fascinating parts of the work we did in the book, for us, was just how much institutional variation we see in selection mechanisms and how we pick judges in the states in the US. In a way, in terms of institutional variety, judicial selections are like the Galapagos of American politics; every state has this sort of hodgepodge of different ways that they select lower courts, up to the State Supreme Court, whether it be through partisan elections, non-partisan elections, a whole variety of different types of nominating commissions that are also referred to as, “Assistant selection,” as well as just a gubernatorial appointment and legislative appointment. So we have across the different states, whole different variety of ways that states are selecting judges.
Another thing that you see is that these institutions have changed pretty dramatically over the [inaudible 00:34:06]. Pretty much every state has modified the way that it selects judges. Most states doing so repeatedly over the last 200 years. And so this makes it a really fertile ground for, most institutions tend to be very stable. Relative to that, judicial selection seems to be very, very changeable. And part of it, I think, ties back to this theory that we were kind of outlined that there is these political incentives that emerge, because we’re selecting judges from [inaudible 00:34:40]. And actually going back to the history of what are the systems that Democrats are most likely to be protective of right now, are these [inaudible 00:34:50], where you have basically, usually individuals that are selected both by usually the State Bar Association and then some nominated by the governor and there are a number of systems [inaudible 00:35:03].
But they essentially look at the list, either create a list of who they think are the most qualified candidates to become judges, or at least assess whether given nomination meets some level of qualifications. And this system was actually a GOP innovation back in the 1930s when we saw a very different dynamic nationally, where as I mentioned, lawyers at the time were this very conservative group, they were a power base within the Republican Party, one that was very much a thorn in the side of New Deal Democrats and FDR. And basically, the Missouri system, which is what sort of innovated these merit systems was designed to push back against what was seeing is politicization of the judiciary by FDR Democrats. And it was actually Eisenhower, who was the first president to invite the American Bar Association to rate judicial nominees at the federal level; a Republican who was coming in after a long period of democratic control. And, interestingly, half a century later, it was George W. Bush who decided that that system was no longer working for the public, this idea that we should be judging nominees primarily on the basis of this idea of merit or qualifications. And so, you can sort of see that, abstracted from the contemporary political context, there are very clear sort of partisan incentives at play when we’re looking at how efforts to reform the judiciary. And this is very much true at the state level.
Matt Grossmann: So you imply, or at least the model implies that this all would be reversed if judges were mostly Republicans, but it does seem like the good government groups are more aligned with the Democratic Party generally. So, is this just kind of a partisan dispute, or is there a wider dispute between the parties about whether we should have expert controlled institutions versus direct elections?
Adam Bonica: I think you could sort of compare it to debates that are going on over gerrymandering, were Democrats, for partisan reasons, right, so if you were a member of a party, you should be advocating for the interests of your party to at least some extent. And you’re balancing that against some notion of what you think is in the interest of good government [inaudible 00:37:32]. I think Democrats are largely genuine in their belief that nonpartisan commissions are better way to go, but it’s also aligned with their partisan incentives as well. And Republicans are moving in a very different direction, not just on issues of gerrymandering and voting access, where they’re turning against many democratic institutions in ways that are quite frightening, but we’re also seeing that in the courts as well, right? And so, I think it is a mixture. So I think for the most part, people think that good governance also has something to do with how they think policy should be generated, and if they think there’s a system that’s locking them out or disadvantages in their party on, it’s pretty natural to think that that’s bad for the way the system is working.
And so, I don’t think it’s purely cynical efforts on the right, but you also have to take into account, it’s not like Republicans are going out and saying, “We shouldn’t be selecting qualified judges. We shouldn’t be selecting people who know what’s going on in the legal system.” They’re making very different arguments. They’re making the arguments along the lines of, the way the system’s set up is giving them too much control. And so, I think if the roles were reversed, as we saw nearly 100 years ago, yeah, we would be seeing basically the opposite dynamics, in just sort of a natural outpouring of how political power operates.
Maya Sen: I have a slightly different take than Adam on this particular question, although I think Adam agrees with me in the end, which is that, thinking about the rules being reversed is really hard, because we’re in a particular moment where expertise has become very partisan. And that’s the case, not just in law, but basically across any other kind of expertise domain that you could think of. So if you look at climate science, like the climate scientists are by and large, not overt partisans, but I think also by and large, are not voting for Republican Party candidates. And Republicans know this and Democrats know this, and therefore climate science is becoming politicized by virtue of the fact that expertise is becoming partisan. And that makes it very challenging for the party that’s not the party of the experts. And right now, that’s the Republican Party. And I’d given kind of the political climate and country, I do not see that changing anytime soon. Right?
So if you’re the Republican party, what do you do? And it’s not just a question of judges, but it’s also a question of climate scientists, engineer scientists, thought leaders across arts and culture, right? What do you do? Even athletics, right? As we were seeing in the last Olympics, right? So it’s like across a bunch of different domains, what do you do? You choose experts on the basis of politics, and political views and policy preferences. So, in terms of the climate scientists that Trump appointed, there were more likely to be kind of chosen on the basis of partisanship and kind of the policy views that they held, as opposed to like, “Pure expertise.” So it’s not just something that we’re seeing in the courts, we’re seeing, the selection on political factors is something that is very strongly incentivized for the Republican Party and Republican Party elites, that’s not incentivized right now for Democrats. So if the positions were reversed, I think we would see the similar patterns hold, but it’s just very hard for me to see the positions being reversed anytime soon.
Adam Bonica: I think that’s exactly right. The same read I have expertise in American politics more generally. And I also think it’s worth pointing out that this is a problem that’s getting worse for Republicans. Younger people who are getting advanced degrees across the board, it’s not just academics and lawyers, it’s also doctors now, that we’re seeing this the same dynamic emerging, where Republicans basically have turned against a lot of what I think people who work with empirical evidence are operating off of. And so, I think that is a really important point that [Maya’s 00:42:00] making, that there’s a fair amount of cynicism in the way that some of this anti-intellectualism has really been growing in the Republican Party, is really sort of doubling down, and it’s going to become an issue where there are going to be very few people who have expertise that actually are conservative in a lot of fields. And we’re already seeing that sort of political followups of that.
Matt Grossmann: But Maya, when it comes to your data on the federal judiciary, it does look like a more traditional polarizing story where Democrats are appointing increasingly liberal judges, just like Republicans are appointing increasingly conservative justices, so talk about that polarization and how we should interpret it? Obviously, it is a popular interpretation to say the courts are becoming more like legislative institutions, where people are voting for their preferred outcome. That hasn’t generally been the start of the way that judicial politics literature looks at it, but your measures find a lot more traditional polarization than some of the others, so should we think about it as another legislature?
Maya Sen: So, I think with the federal courts, it’s really important to keep in mind that they’re named by the President and then confirmed by the Senate. So they reflect the preferences of those two, right? There’s no other input into what our federal courts look like. There’s no role for the public to play, and there’s no moderating role in this case for the legal profession to play, other than in this weird way where they assign ratings to candidates, but they don’t really do that anymore, so, they’re kind of like out of the system, right? So it’s really reflective of what the President wants, and then also what the Senate wants. Those two. So if you have a very, very conservative President, and you have a very conservative Senate who wants to play along and really prioritizes judicial confirmations, then guess what? You’re going to get a series of appointments that are very, very conservative.
And so, what we’ve in the federal courts in the last five or six years is a Trump administration that came in with many vacancies, owed exclusively to the efforts of Senate Republicans, and he was able to make a number of very, very conservative appointments. And as we know from other work in political science, there’s been polarization in Congress, and it’s been asymmetric in the sense that it’s been the Republican Party shifting to the right over time. And it should in no way be surprising that that’s mostly what we see reflected in the federal courts, because the federal courts are reflective of the preferences of congressional Republicans, and Senate Republicans, in tandem with the white house. So with Trump, you’re seeing very, very conservative appointments that are pushing the Republican appointments onto the courts to the right.
One of your points of your question was like, “Will these trends continue,” right? So is Joe Biden going to appoint extremely, extremely left-leaning judicial voices? I think the answer’s probably not. He himself is sort of more of a moderate Democrat, but he’s been pushed to the left on some issues, and there are signs that he’s appointing pretty progressive candidates, but is that going to outweigh or cancel out kind of the conservative leaning of the recent Republican appointments? I don’t think so. I don’t think it’s going to all of a sudden become symmetric polarization, but this is something that I think it’s a little bit too early to tell, given that he’s been in office now for a year and a half. So, time will tell.
And I think a lot is going to depend also on future Republican administrations and the kinds of candidates that they appoint, if they’re going to be kind of consistent with this trend and the Republican Party moving increasingly to the right, then if that’s the case, then the courts will reflect that. And part of that, I think, boils down to the framework that Adam and I argue in the book, that the courts really are reflective of what we call this judicial tug of war between all of these players; the legal profession and party elites. And in the case of the federal courts, the party elites have all of the power. And so the federal courts really reflect the preferences of party elites. And in this case, the reflecting the preferences of the Republican Party and the Democratic Party, and in the case of the Republican Party, they’re going to the right. So, they’re going farther and farther to the right, in the way that kind of reflects broader trends in national level politics.
Now, a separate question I think is, are judges acting more like legislators? I don’t think they’re acting any differently than they have been acting historically. We know from lots of research in judicial politics, that ideology powerfully predicts the way that judges vote. And that’s always been the case, it’s not a new thing. I think what we have now is we have better measures of it. So, we can present that in a more crystallized and nuanced way. And so we can track that more carefully, and then we also see, I think increasingly distinct patterns with Republican judges kind of being more and more conservative. And we can pick that up using measures like the ones that Adam and I use in our work, that weren’t available to scholars until we started working on it. So you couldn’t really see those patterns as clearly as you can now. So I don’t think anything has changed in the way that they’re actually behaving; I think the trends have changed as the Republican Party has moved to the right, and I think we can detect those changes in a bit more of a straightforward fashion.
Matt Grossmann: Adam, you obviously have produced data on lots of different professions. In the book you show that academics, the media and tech companies also lean to the left. You’ve also studied at trends among doctors. What can we learn from these ideological positions of the occupations? Is there truth to the conservative argument that there is a broader occupational liberal elite, and that lawyers are just one piece of that?
Adam Bonica: I’m mostly interested in the ideological leanings of different professions, more generally. So, as we mentioned, like lawyers, doctors, tech workers. And, one of the interesting patterns that seems to be pervasive among these different groups is that there has been a very strong trend to the left that is generationally driven. So, younger professionals are overwhelmingly liberal right now. Again, this is a reversal of what used to be the case of the professional class. It was very aligned with the Republican party. And so, we’ve seen a complete reversal over the last century or so. And, it’s important to understand this for a number of reasons. One, it goes to the work done by Nick Carnes and others showing how over-represented professionals are within the halls of power, that this is a group that is heavily over-represented in Congress and other areas.
They also have other levers of power that aren’t just purely political in nature. So, we’re seeing all this conflict going on about tech companies, where Republicans are furious at tech companies because they say they’re too liberal. And Democrats are really concerned about tech companies, or many of them, at least Progressives, because they are increasingly looking like monopolistic powers. And so, it is this interesting dynamic that there’s this very affluent and well-resourced group that is also mobilized across these different professions. They tend to be much more likely to be active in politics, especially when it comes to donating money, tend to be getting, are very liberal, are getting more so. Academia, I think, was just a bellwether for the rest of us, the professional class, in that sense.
And so, I do a lot of work in money and politics, and I think understanding what professionals are doing and the trends going on within that group is really important to understanding what’s going on in projecting forward what’s going to happen in money and politics. Billionaires, for instance, can give massive amounts of money to spend on independent expenditures, which basically largely goes towards campaign advertising. But the bread and butter of most campaigns still comes from direct contributions. And that is increasingly dominated by the professional class. And so, Republicans are going to find it harder and harder to actually compete in fundraising [inaudible 00:50:40] of the Democrats, given these [inaudible 00:50:44] that there’s just very few people who can give two or three thousand dollars to a candidate, which is basically dominated by these professionals. And it’s increasingly the case that they’re giving exclusively to Democrats.
And so we’ve seen this trend happen. It’s also interesting to see the dynamics within different professions emerge. Within the medical profession, for instance, younger doctors are increasingly progressive. Among doctors under 40, the candidate that raised the most money in 2016 was Bernie Sanders, by a long shot. And this is again, it’s this reversal. And we’ve seen it come to a head at American Medical Association meetings, where younger doctors are pushing really hard for universal health care, and older, more established doctors are still of the mind that they really don’t want to go that route.
And so, I think it’s part of these power structures, and understanding of how that’s been changing over time. Professions are extremely important groups within American society, and I think also there’s something to be said that it’s not just lawyers that seem to be under-regulated, and not as oriented towards the public interest as they could be. I think those critiques also apply very much to the medical profession and academia as well, where we’re looking at massive debts that people are taking out. And, it’s going to be interesting to see whether a more liberal set of professionals are going to be more willing to accept the types of public interested regulations that could potentially be detrimental to their own professional status or income, and not fight them as hard if they are ever pushed at a national level. And so, there are a lot of interesting questions I think emerge.
I’ll make one last point, which is the point that Maya made, that studying these groups is also studying expertise in a way, and those dynamics have been really on display over the last few years.
Matt Grossmann: So, Maya, one group of experts who might be seen as having a self interest in the legal profession and have both the left of academia and lawyers is the legal academia. And you are studying an area that’s traditionally had its home in legal academia. What does the social science perspective bring to these issues, and are there blind spots in how legal academia thinks about its own role?
Maya Sen: Yeah. Some of my best friends are law professors, so let me stipulate that at the beginning. I think for having interacted with a lot of law professors on the topics of judicial reform and the topics that Adam and I talk about in our book, I think a possible difficulty for legal academics and approaching problems the way that social scientists do, is that they were trained as lawyers. And so, they’re trained in a way that puts the courts at a very significant apex in terms of this hierarchy of institutions. They tend to think that the rule of law is a strong positive, that legal processes are very important, that the courts are not necessarily beyond reproach, but are important non-partisan. I can qualify that a bit, but like outside of the scope of regular political processes, and are something that are admired. And this intangible environment that they’re trained in, I think, leads them to have a lot of respect for legal institutions that political scientists just do not have.
So, political scientists approach things totally differently. We do not have this humble respect for judicial institutions. Instead, we take them and we approach them as we would any other kind of political institution. We criticize them, we poke at them. We try to measure things like judicial ideology. We question the very nature of how these institutions are set up. We question basic fundamentals of how judges interact with each other. I think, in ways, that if you’re a law professor, you tend not to do that.
Because you hold up these institutions to … You put them on this pedestal, almost. And being a judge is very prestigious for a lawyer. And because political scientists don’t have those incentives or that kind of dynamic, we are much more critical in how we approach these institutions. And I’ve encountered that again and again and again, where political scientists will make a point about partisanship that seems blindingly obvious to a political scientist, but it’s maybe untoward or uncomfortable for a lawyer to consider. And in part, that’s because it’s … Saying something like judges are partisan or politicians in robes or something like that, is kind of like an affront to the entirety of what lawyers do.
And so I think that’s kind of a difference in the way that political scientists and lawyers approach the topics that Adam and I approach in our book. But I will say that … And this is something that Adam picks up on in some of the things he said. I think there’s a generational shift happening in how even law professors talk about these institutions. So, I’ve noticed in the last three or four years, there’s been a new crop of young law professors who are bold, who are making fresh arguments about the courts, who are talking pragmatically about the role of ideology and partisanship. They’re pushing on Democratic party elites and legal elites and thinking about retirements and who should be retiring and who isn’t, but should be retiring.
And they’re talking about the court in a way that’s very fresh to me, and unusual for law professors. And so I think that even that is all changing. And it could be, as Adam says, that the new generation is more left leaning, more progressive. It could be that, but it could also be the political science arguments about the courts are hitting home for people. And our arguments about the way that the courts operate and thinking institutionally about incentives and partisan incentives and about ideology, it could be the case that people are listening in law schools, and they’re thinking about the courts in a different way. And it’s been cool to see that change.
Matt Grossmann: So, what is the most likely Bonica and Sen volume two, where are you going from here?
Adam Bonica: One thing we’ve sort of been thinking about is looking more at these questions of reform, and what it could and potentially should look like. A lot of what we find in the book comes back to this one feature. Remember, politics with the courts are incredibly powerful for the placards. They’re then placed in this position where there’s this enormous political prize, and there’s so much conflict over who is populating the courts that this is spilling over into how the courts are actually operating. The zeitgeist right now is about these questions about reform. Democrats and Progressives particularly are pushing to expand the court, introduce limits on how long judges may be serving. And there are also questions about how do we actually think about disentangling the courts from the legal profession, to some extent.
Maya and I have talked a little bit, it is beginning to tell, we agree on about 95% of stuff, and we have interesting different perspectives on about the other 5% of stuff. So, working through these ideas about what is the best way to go about reform is interesting. We were actually discussing a proposal out there. There would be like a rule of seven, which is, pressuring the Supreme Court to adopt a rule of where they would need a super majority to overturn congressionally passed legislation. And whether that would be a good idea or a bad idea, I think there’s a lot to really explore before you can make a good determination of it. I’m a little more bullish on it than Maya, but I also share a lot of her reservations about it. And so, I think these are some of the ideas that we’re thinking about moving towards in the future.
Matt Grossmann: There’s a lot more to learn. The Science of Politics is available bi-weekly from the Niskanen Center, and part of the Democracy Group Network. I’m your host, Matt Grossman. If you liked this discussion, you should check out our previous episodes on How the Federalist Society Changed the Supreme Court Vetting Process, How the Supreme Court Shapes Public Support, and How Court Nominees Polarize Interest Groups.
Thanks to Maya Sen and Adam Bonica for joining me. Please check out The Judicial Tug of War, and then listen in next time.