Block on Trump's Asylum Ban Upheld by Supreme Court
A new Harvard study, which claims lawyers are more liberal than the general population, has been making the rounds in the ABA Journal, The New York Times, and on Above the Law. The study aims to determine whether the judiciary is politicized, as has been claimed in the media for a long time now -- at least, depending on whether you agree with the judge's decision (which is problem one here).
The study also aims to determine what, if any, effect the politicization of lawyers has on monetary donations to judicial election campaigns. Most state court judges are elected, and the amount of money being spent in judicial campaigns is going up dramatically.
In General, Lawyers Are Liberal
Lawyers in general, the study found, were more liberal than the rest of the population. The researchers also separated out lawyers by type of lawyer and found that women, government lawyers, law professors, and public defenders leaned "liberal," while BigLaw lawyers and firm partners were more conservative. It's worth noting, though, that the liberal-leaning lawyers tended to be more liberal than the conservative-leaning lawyers were conservative. (Even prosecutors leaned slightly liberal.)
Judges were different. While as a population they leaned slightly conservative, "the higher in the judicial hierarchy, the less the overall distribution resembles the distribution of attorneys," the study found. Supreme court judges are more conservative than trial court judges. Federal judges are more conservative than state judges.
So Why Are Judges Conservative?
Why? That's a question to which the study doesn't give a terribly satisfactory answer. It suggests that "viable conservative judicial candidates are strategically funneled toward judgeships in the nation's higher courts (including federal courts) by political elites" -- basically what The Federalist Society (apparently successfully) made its explicit goal.
But that would mean the nation's political elites are conservative, and we just learned from the study that lawyers -- who are over-represented among that same political elite -- are definitely liberal. Or it could be that conservatives are just better at getting their judicial candidates through at the higher echelons of the judiciary.
Then again, maybe there have just been more conservative appointees in recent years. And guess what: There have been. Since 1981, Republican presidents appointed 893 federal judges, while Democrats appointed 678. Republican presidents also appointed more federal appellate judges in the same period: 187 compared with 119. It's not clear whether this explains the discrepancy in federal judges, or whether it's just a coincidence.
No explanation seems satisfactory. Elite law schools are liberal-leaning, yet more elite judges are more conservative. Elite judges -- conservative, remember -- are often culled from the ranks of law professors, but law professors are liberal. Many judges were once prosecutors, but even prosecutors are more liberal than judges are.
We can't wait for the sequel.