Vol. 31 No. 6 (June 2021) pp. 111-114THE JUDICIAL TUG OF WAR: HOW LAWYERS, POLITICIANS, AND IDEOLOGICAL INCENTIVES SHAPE THE AMERICAN JUDICIARY, by Adam Bonica and Maya Sen. New York: Cambridge University Press, 2021. 314pp. Hardcover $39.99. ISBN:9781108841368
Reviewed by Matthew E. Baker and Christina L. Boyd, Department of Political Science, University of Georgia. Emails: Matthew.Baker@uga.edu and cLboyd@uga.edu.
In their new book, Bonica and Sen promise a JUDICIAL TUG OF WAR, and they deliver. THE JUDICIAL TUG OF WAR: HOW LAWYERS, POLITICIANS, AND IDEOLOGICAL INCENTIVES SHAPE THE AMERICAN JUDICIARY investigates the battle between the legal profession and political elites “in which the judiciary not only is the prize to be won but is also caught in the middle” (p. 19). The result of this high stakes conflict is a judiciary tinged by politics. In modern times, the legal bar pulls the judiciary to the left, while political elites, on average, yank back toward the right. As Bonica and Sen argue, this “mismatch has acted like an earthquake fault line, exacerbating the judicial tug of war over the nation’s courts” (p. 14). THE JUDICIAL TUG OF WAR is smart, thorough, and well-executed in all ways as it tackles this incredibly salient topic.
THE JUDICIAL TUG OF WAR is organized into three parts, with nine total chapters. Part I of the book examines the legal profession (Chapters 2 and 3), and Part II takes on political elites (Chapters 4, 5, and 6). Part III then examines the implications of the tug of war on the judiciary, including reform efforts and polarization (Chapters 7, 8, and 9).
In Chapter 2, Bonica and Sen detail the “politically outsized roles” (p. 5) played by lawyers during American history and relative to other countries around the world. The authors argue that American attorneys, serving in prominent political roles, shaped politics and policy to favor the legal profession. This is not a surprise given the aberrant number of U.S. lawyer-legislators compared to other OECD nations, as highlighted in Figure 2.4. Chapter 3 then addresses the growth of the legal bar’s political power and autonomy which, together, helped the bar professionally “capture” the judiciary. As a result, the bar retains strong influence over judicial selection (via, e.g., ABA ratings), restrictions on judicial conduct, the process of legal education, and so much more. Among its other highlights, Chapter 3 includes an interesting section on how the self-regulation of lawyers negatively impacts diversity within the legal profession and inhibits access to justice for lower-income Americans.
Chapter 4 introduces us to the other player in the judicial tug of war: politicians. Politicians pull on the other end of the figurative rope, constrained by the legal profession’s capture of the judiciary. This chapter provides the first visual glimpse into Bonica and Sen’s thesis through the use of several spatial models and examples, arguing that the distance between attorneys, judges and politicians changes the degree of judicial capture and, ultimately, affects the ideology of the bench.
Chapter 4 also presents the DIME (Database on Ideology, Money in Politics, and Elections) ideology scores. Using political campaign contributions, these scores allow the authors to place attorneys, politicians, and judges on the same ideological spectrum. While some readers may be familiar with the DIME data from other recent studies, Bonica and Sen’s presentation and use of the data here will surely introduce the data to a new and broad audience. This introduction is fluid and digestible. Among the highlights of the data’s usage in Chapter 4 is a comparison of lawyers’ ideologies to other professionals’ ideologies, showing a high concentration of left-leaning ideology among the legal profession but much more ideological balance among judges. From this, Bonica and Sen theorize that Republican and Democratic politicians have different incentives in judicial selection: Republicans want to see more ideological diversity among judges relative to attorneys (thereby emphasizing party and ideology) whereas Democrats argue for a judiciary that is ideologically reflective of the legal profession and prioritize neutral factors like pedigree and qualifications.
Chapters 5 and 6 take the distinct political goals outlined at the end of Chapter 4 and run with them in their discussion of state and federal judicial selection. At the federal level (Chapter 5), presidential nomination, and Senate advice and consent roles inject the ideology of political actors into the selection process. In this discussion, Bonica and Sen argue that conservative lawyers, especially those from elite schools, have a better shot at federal judgeships than other lawyers based on the scarcity of elite-school conservative graduates. Their findings are compelling, showing that political actors have “more success at politicizing—or introducing ideology into judicial selection—at the higher court levels” (p. 163). This helps explain why the U.S. Supreme Court and federal circuit courts are more aligned with the ideological distribution of politicians than other courts.
Separately, state courts (Chapter 6) allow for comparisons across selection methods and also infuse the discussion with more non-elite law school graduates as judges. Unlike federal judges, state court judges do not necessarily come from “elite” schools, so the authors provide extensive comparisons of ideologies of graduates from the 28 top judge producing law schools (shown in Figure 6.1). The chapter’s analysis reveals that executive appointment and partisan election systems are particularly sensitive to politicians’ preferences, infusing the ultimate selection of judges. In other words, the more a state’s judicial selection mechanism allows for ideology and political preferences to play a role, the more political actors will win the “tug of war.”
Chapter 7 includes salient and useful case studies on Florida in 2001, Kansas in the early 2010s, and North Carolina in 2016. These provide helpful and accessible context for the book’s framework. Summing it up: when politicians at the state level do not like court outcomes, they can, and sometimes do, seek systematic reform. These case studies are also interesting because in all three politicians sought to infuse the judiciary with more conservative ideology but chose drastically different reforms. The Florida and Kansas reform efforts sought to consolidate gubernatorial power over judicial selection while North Carolina changed its judicial selection method from nonpartisan to partisan elections.
Chapter 7 is also where the authors make clear their normative contributions, highlighting the difference that selection mechanisms make in both the independence and quality of the judges. When it comes to politicians, the ideological consequences lead to judges needing only to be qualified “enough” to rule “in the way that politicians want” (p. 249). Legal elites, however, seek “qualified” judges to shore up public support but again, only as far as the judges vote in ways that align with the legal bar.
Chapter 8 then tackles, with gusto, the “so what?” question about this tug of war. Bonica and Sen argue this fervent conflict creates litigant uncertainty, a negative externality with several roots and many branches. The ideological movement of the courts as older judges are replaced creates polarization, which leads to greater judicial conflict between courts and within circuits. Uncertainty produced by this conflict, they argue, increases the costs for litigants and lower courts. Litigants must be prepared for any number of outcomes and be willing to bear the cost of appeals that can drag conflicts out even further. Judicial conflict, measured by increased dissents on appellate panels, further stretches the less-than-stellar resources of appellate courts, again increasing the time and cost it takes to litigate a case.
As the book concludes, the reader can see the book’s many important empirical and normative contributions on the judicial tug of war between the legal profession and political elites. This includes a very plausible look into the future: Bonica and Sen expect a rightward lurch among elected officials to be met with a leftward march among the legal profession, further escalating the conflict between politicians and lawyers.
As is characteristic of Bonica and Sen’s other scholarship, THE JUDICIAL TUG OF WAR is well-crafted, careful, and evidence-based research. The writing and organization are clear, and the statistics are rigorous but presented in a way that is accessible to a broad readership. Bonica and Sen use extensive data on lawyers, judges, and ideology throughout the book (“nearly half a million lawyers, judges, political actors, activists, and other members of the political and legal establishment,” (p.25)). Much of these data are newly collected for this book or other recent projects and represent, even on their own, major contributions to scholarly work.
While the book utilizes extensive quantitative data, it also introduces qualitative, historical, and contemporary evidence to weave a compelling story from every angle. We enjoyed, for example, how it treats the reader to stories of salient political battles over the selection of judges, ranging from Merrick Garland’s nomination to the Supreme Court to George W. Bush’s decision in 2001 to no longer submit potential judicial nominees’ names to the American Bar Association to the puzzle surrounding the moderate-to-left leaning composition of the Kansas Supreme Court in the 2010s despite the state’s otherwise rightward shift in political leadership.
We think the book will make a great addition to your undergraduate and graduate course syllabi. Chapter 2 provides just one strong example of the book’s prospective usefulness in the classroom: it includes both a rich history of lawyers’ influence over American history and detailed text and graphics highlighting the comparison between lawyer-legislators in the U.S. and other countries around the world. A similar case can be made for the book’s other chapters, including Chapter 7’s treatment of reform efforts and Chapter 8’s polarization discussion.
Our critical comments about THE JUDICIAL TUG OF WAR are few and far between. One could argue, we suppose, that not every statistical analysis contained in the book is essential or fully fleshed out. For instance, take the book’s examination of whether there is a pro-bar association bias in the federal courts from Chapter 3. The analysis includes a small number of observations spread over a long period of time (420 non-settled cases from the 1980s to the present across both district and circuit courts). While the data indicate that bar associations are much more successful than ordinary defendants, the cases in which bar associations are defendant are a strange mix of lawsuits (largely about lawyer admission to or expulsion from a bar) from which to draw strong conclusions. In other words, it isn’t clear that the inclusion of this analysis adds much to the book’s overall story. But quibbles like this (about an analysis that accounts for less than two pages of this book) are quite minor and don’t take away from our overall enthusiasm for this impressive book.
In short, THE JUDICIAL TUG OF WAR is an important and original book that should be widely read by scholars, politicians, lawyers, judges, the media, and the public. The book is also extremely timely. Polarization and partisanship continue to dominate American politics, and courts in the United States are far from immune. As Bonica and Sen so correctly note, going forward, we should “expect to see more and more conflicts between political elites and the nation’s legal profession – tensions that will result in more strife within the courts themselves” (p. 21).
© Copyright 2021 by authors, Matthew E. Baker and Christina L. Boyd.
