Federal bench tilting to right, professor finds

Jerry Crimmins
Chicago Daily Law Bulletin
August 20, 2004

Starting with Ronald Reagan, U.S. presidents of both parties have appointed more conservative judges to the federal appeals courts than their predecessors in recent decades, says a University of Chicago law professor.

"The Reagan revolution is real," according to Professor Cass R. Sunstein who runs a large-scale study of the voting patterns of judges on the federal appeals courts.

Sunstein says he will soon publish a ranking of 150 judges on the federal appeals courts according to how liberal or conservative they vote.

He also plans to rank U.S. presidents based on their judicial appointments.

Sunstein leads the "Chicago Judges Project" and is assisted by 25 students. He is collaborating with Professor David Schkade of the University of Texas McComb School of Business.

Workers in the project are counting decades worth of votes by federal appeals courts judges on the cases they handled. The workers divide those votes into liberal and conservative.

So far, the project has counted about 15,000 individual votes, Sunstein said.

Judges who are being ranked have taken part in at least 30 decisions.

According to the data, Frank H. Easterbrook and Richard A. Posner of the 7th Circuit U.S. Court of Appeals "rank among the most conservative judges in the U.S.," he said.

Based on Sunstein's study, he said recent Republican presidents, namely Reagan, George H.W. Bush and the current chief executive, "have appointed much more conservative judges" to the appeals courts than the three Republican presidents who preceded them. Those were Dwight D. Eisenhower, Richard M. Nixon and Gerald Ford.

Also, "What we find is that President Clinton's judges are definitely more conservative than Presidents Johnson's and Carter's," Sunstein said.

The study has already stirred controversy.

"I think critics think it has a political purpose, which it doesn't," Sunstein said. "A lot of people apparently think it's designed to be critical of Bush or critical of Republican appointees. It isn't."

Sunstein admits that the study's way of separating a liberal vote from a conservative vote is based on "very simple stereotypes."

"We wanted to do something simple you could test for," he said. "We sacrificed nuance for testability."

He listed 15 issues that he calls "test areas of the law," which the study uses to distinguish conservative from liberal votes.

For instance, "If you vote in favor of an affirmative action program, that's a liberal vote," Sunstein said. "If you vote against an affirmative action program, that's a conservative vote."

"In an abortion case, if you rule a woman has a right to choose," that's liberal, he said. If a judge rules the government can limit access to abortion, that's conservative.

The issue that divides judicial appointees of the two political parties the most, he said, is "gay rights."

"There is a very large division between Republican and Democratic appointees in gay rights cases, and essentially none in criminal appeals," Sunstein said.

Among other discoveries, Sunstein said, appeals court judges appointed by Reagan and both Bushes, "are almost identical in their voting patterns."

"The full report will be available in about two months," Sunstein said. "We have a gold mine, a tremendous amount of data, all public, and it hasn't been studied systematically before."

"Our goal," he continued, "is really to figure out what's going on with the federal judiciary. People can draw their own conclusions.

"I don't think President Reagan's supporters would be sad to find out his appointees are much more conservative than Nixon's. I think they'd be glad...

"Draw your own conclusions about what kind of judges you like better."

He said a valid criticism of the study is that he and others picked specific areas where they expected to find ideological differences, "and lo and behold, we did. If we took a full picture of all federal votes, maybe we wouldn't find such pronounced differences," he said.

For example, he said differences between Republican and Democratic appointees would probably not turn up in bankruptcy decisions.

Asked about his own politics, Sunstein said, "I tend to be more Democratic than Republican, but I vote for both. I was a registered Republican in Massachusetts 22 years ago... I'm going to vote for Kerry, but my views are pretty eclectic."

Here are the other "test areas of the law" that Sunstein said the study uses to separate liberal and conservative votes on the appeals courts: U.S. environmental regulations, the Americans with Disabilities Act, campaign finance laws, federalism questions.

Also, sex and race discrimination, sexual harassment, property rights, corporate misconduct and capital punishment and other criminal matters.

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