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The Party Variable in Judges' Voting: Conceptual Notes and a Case Study*

Published online by Cambridge University Press:  01 August 2014

David W. Adamany
David W. Adamany*
Affiliation:
Wesleyan University
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Extract

Since the writings of the judicial realists in the 1920's and 1930's almost all social scientists have accepted the concept that the judicial process is basically political. One line of reasoning points out that judges inevitably are policy makers because of their functions, such as constitutional and statutory interpretation. Politics is conflict among interests or values or demands, and any activity, including judicial decisions, which advantages one interest as opposed to others is political activity. Since judges decide cases involving interest conflicts, theirs is “interest activity not as a matter of choice but of function.” Robert H. Jackson made the point cogently when he argued that the “Supreme Court has, from the very nature of its functions, been deep in power politics …” Of the power of judicial review, he said, “The ultimate function of the Supreme Court is nothing less than the arbitration between fundamental and ever-present rival forces or trends in our organized society.” Although these remarks were addressed to the Supreme Court, they are true to a substantial degree of judicial power throughout the American system. Many of the conflicts adjudicated by the judiciary advance some interests or values and disadvantage others.

At the same time that the judicial function has been recognized as political in its consequences, the process of judicial decision making has come to be viewed as involving wide opportunities for discretion by the judges. The mechanical theory of judging, enunciated most clearly by the late Justice Owen Roberts, is now generally in disrepute, and realists prefer to cite Charles Evans Hughes who stated “We are under the Constitution, but the Constitution is what the judges say it is.”

Type
Research Article
Information
American Political Science Review , Volume 63 , Issue 1 , March 1969 , pp. 57 - 73
Copyright
Copyright © American Political Science Association 1969

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Footnotes

*

I am grateful for the comments and advice of Fred I. Greenstein, Clement E. Vose, Joel B. Grossman and Kenneth Dolbeare on early drafts of this paper. I wish to thank Gaylon Greenhill, chairman of the Department of Political Science at Wisconsin State University—Whitewater, and Marvin Summers and Wilder Crane, chairmen of the Department of Political Science at the University of Wisconsin—Milwaukee, for the considerable assistance rendered me at those institutions during my appointments there.

References

1 Peltason, Jack, Federal Courts in the Political Process (New York: Random House, 1955), ch. 1, esp. p. 3 Google Scholar.

2 Jackson, Robert H., The Struggle for Judicial Supremacy (New York: Random House-Vintage, 1941), p. vii Google Scholar.

3 Ibid., p. 311.

4 United States v. Butler, 297 U.S. 1, 79 (1936).

5 Vose, Clement E., “Litigation as a Form of Pressure Group Activity,” The Annals of the American Academy of Political and Social Science, 319 (09, 1958), 20–31 CrossRefGoogle Scholar; and his “Interest Groups, Judicial Review, and Local Government,” Western Political Quarterly, 19 (03, 1966), 85–100 CrossRefGoogle Scholar. The Court's reaction in 1949 to the excessive use of amicus briefs is discussed in Harper, Fowler V. and Etherington, Edwin D., “Lobbyists Before the Court,” University of Pennsylvania Law Review, 11 (1953), 1172–1179 CrossRefGoogle Scholar. See also Krislov, Samuel, “The Amicus Curiae Brief: From Friendship to Advocacy,” Yale Law Journal, 72 (1963), 694–721 CrossRefGoogle Scholar.

6 On these points, see Jack Peltason, op. cit., pp. 22–25, for a review of some of the sources and findings.

7 Various views on the influence of law clerks in the decisional process of the United States Supreme Court are presented in Schubert, Glendon, Constitutional Politics (New York: Holt, Rinehart and Winston, 1964), pp. 138–146 Google Scholar.

8 Schmidhauser, John, The Supreme Court: Its Politics, Personalities and Procedures (New York: Holt, Rinehart and Winston, 1963), chs. 2–3Google Scholar.

9 “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law, 6 (1957), 279–295 Google Scholar.

10 Schubert, Glendon, Quantitative Analysis of Judicial Behavior (Glencoe, Illinois: The Free Press, and East Lansing, Michigan: Michigan State University Bureau of Social and Political Research, 1959), pp. 129–142, esp. pp. 132–134 Google Scholar. Ulmer, S. Sidney, “The Political Party Variable on the Michigan Supreme Court,” Journal of Public Law, 11 (1962), 352–362 Google Scholar. Nagel, Stuart S., “Political Party Affiliation and Judges' Decisions,” this Review, 55 (12, 1961), 843–850.Google Scholar Goldman, Sheldon, “Voting Behavior on the United States Courts of Appeals, 1961–1964,” this Review, 60 (06, 1966), 374–383.Google Scholar A study of both regional and party background variables at a much earlier period in American history is Schmidhauser's, John “Judicial Behavior and the Sectional Crisis of 1837–1860,” Journal of Politics, 23 (11, 1961), 615–640 CrossRefGoogle Scholar.

11 Schubert, op. cit., pp. 132–133.

12 Ibid., pp. 135–142.

13 Ulmer, op. cit., pp. 352–362.

14 Ibid., p. 362.

15 Nagel, op. cit., pp. 843–850.

16 Ibid., p. 846.

17 Ibid., pp. 848–849.

18 Op. cit.

19 Ibid., p. 381.

20 Ibid. He hedges this finding somewhat by pointing out that his data permit an interpretation which suggests that “on the really ‘important’ cases that force the judges to stand up and be counted,” the Democrats have higher overall liberalism scores and that these might include a higher degree of liberalism on some civil liberties and criminal matters.

21 Schubert, Glendon, Judicial Policy-Making (Chicago: Scott, Foresman and Co., 1965), p. 113 Google Scholar.

22 Grossman, Joel B., “Social Backgrounds and Judicial Decisions,” Journal of Politics, 29 (05, 1967), 334–351, esp. pp. 344–347CrossRefGoogle Scholar.

23 Nagel, op. cit., p. 847.

24 Greenstein, Fred I. and Jackson, Elton F., “A Second Look at the Validity of Roll-Call Analyis,” Midwest Journal of Political Science, 7 (05, 1963), p. 161 CrossRefGoogle Scholar.

25 Nagel, Stuart S., “Unequal Party Representation on State Supreme Courts,” Journal of the American Judicature Society, 45 (1961), 62–65 Google Scholar.

26 Schmidhauser, John, “The Justice of the Supreme Court—A Collective Portrait,” Midwest Journal of Political Science, 3 (02, 1959), p. 37 CrossRefGoogle Scholar.

27 Mott, Rodney, Albright, Spencer D. and Semmerling, Helen, “Judicial Personnel,” in Schubert, Glendon (ed.), Judicial Behavior: A Reader in Theory and Research (Chicago: Rand McNally, 1964), pp. 197, 200 Google Scholar.

28 McClosky, Herbert, Hoffman, Paul J., and O'Hara, Rosemary, “Issue Conflict and Consensus Among Party Leaders and Followers,” this Review, 44 (06, 1960), 406–427.Google Scholar Flinn, Thomas A. and Wirt, Frederick M., “Local Party Leaders: Croups of Like Minded Men,” Midwest Journal of Political Science, 9 (02, 1965), 77–98 CrossRefGoogle Scholar. Also, Eldersveld, Samuel J., Political Parties: A Behavioral Analysis (Chicago: Rand McNally, 1964), pp. 184–185 Google Scholar.

29 McClosky, et al., op. cit., p. 421.

30 Ibid.

31 Ibid.

32 “The Influence of Party Upon Legislation in England and America,” Annual Report of the American Historical Association, 1901 (Washington: Government Printing Office, 1902), Vol. 1, p. 323 Google Scholar.

33 Quantitative Methods in Politics (New York: Alfred Knopf, 1928), p. 209 Google Scholar.

34 Ibid., pp. 210–211.

35 See Congressional Quarterly Weekly Report, No. 49 (1966) p. 2989 Google Scholar for an explanation of the technique which CQ has consistently used in its congressional voting analyses.

36 See Turner, Julius, Party and Constituency: Pressures on Congress (Baltimore: The Johns Hopkins Press, 1955), pp. 27–29, 36–71 Google Scholar. Also, Truman, David, The Congressional Party (New York: John Wiley and Sons, 1959), esp. chs. 3, 5Google Scholar. And MacRae, Duncan Jr., “The Relationship Between Roll Call Votes and Constituencies in the Massachusetts House of Representatives,” this Review, 44 (12, 1952), 1046–1055.Google Scholar

37 Crane, Wilder Jr., “A Caveat on Roll-Call Studies of Party Voting,” Midwest Journal of Political Science, 4 (08, 1960), 237–249 Google Scholar.

38 Fred I. Greenstein and Elton F. Jackson, op. cit.

39 State ex rel. Thompson v. Gibson et al., 22 Wis. 2d 275 (1964); State ex rel. Reynolds v. Smith, 22 Wis. 2d 516 (1964).

40 Stat ex rel. Reynolds v. Zimmerman et al., 22 Wis. 2d 544 (1964); State ex rel. Reynolds v. Zimmerman, 23 Wis. 2d 606 (1964).

41 State ex rel. Elfers v. Olson, 26 Wis. 2d 422 (1965).

42 The ideological and programmatic aspects of the parties are described in Fenton, John, Midwest Politics (New York: Holt, Rinehart and Winston, 1966), chs. 2–3Google Scholar; Stephen, B. and Sarasohn, Vera, Political Party Patterns in Michigan (Detroit: Wayne State University Press, 1957)Google Scholar; Epstein, Leon D., Politics in Wisconsin (Madison: University of Wisconsin Press, 1958), pp. 36–38, 46–56, 82–86 Google Scholar; and Sorauf, Frank, “Extra-Legal Political Parties in Wisconsin,” this Review, 48 (09, 1954), 692–704.Google Scholar

43 Michigan party finance is thoroughly described in White, John P. and Owens, John R., Parties, Group Interests and Campaign Finance: Michigan '56 (Princeton: Citizens' Research Foundation, 1960)Google Scholar. The financial bases of the Wisconsin parties are described in Epstein, op. cit., pp. 79–80; Greenhill, H. Gaylon, Labor Money in Wisconsin Politics, 1964 (Princeton: Citizens' Research Foundation, 1966), esp. pp. 22–39 Google Scholar; and Adamany, David, Money in a State Political System: Wisconsin (unpublished Ph.D. dissertation, Department of Political Science, University of Wisconsin, 1967), esp. ch. 5Google Scholar.

44 Information about the selection of judges in Michigan is derived from S. Sidney Ulmer, op. cit., unless otherwise noted.

45 Ibid., p. 268.

46 Ibid., pp. 360–361.

47 Schubert, Glendon, Quantitative Analysis of Judicial Behavior, pp. 135–142 Google Scholar.

48 Ibid., p. 134, esp. Table 3.15.

49 Ibid., p. 134.

50 Ibid., p. 89.

51 Ibid., p. 90.

52 Joel B. Grossman, “Dissenting Blocs on the Warren Court: A Study in Judicial Role Behavior,” (unpublished paper).

53 Ibid., p. 24.

54 Greenstein, Fred I., The American Party System and the American People (Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1963), p. 57 Google Scholar.

55 Ulmer, op. cit., pp. 354–355.

56 Ibid., p. 354. Despite the evidence in Ulmer's article and the advocacy of change by some justices, the Michigan Constitutional Convention did not alter the institutional arrangements for the election of supreme court justices. The responsibility for nominating judicial candidates remains in the hands of party conventions, Michigan Statutes Annotated, Section 6.1392, and the general election ballot maintains its nonpartisan form, Ibid., Section 6.1393.

57 Ulmer, op. cit., pp. 354–355.

58 Ibid., p. 334.

59 Other judicial elections were the unopposed re-election of Justice George Currie (R) in 1957; the election of William Dieterich (R) over sitting Justice Emmert Wingert (R) in 1958; the election of sitting Justice Harold Hallows (R) over Stewart Honeck (R) in 1959; the election of Circuit Judge Bruce Beilfuss (R) over Harry E. Larsen, a Democrat so nominal that a number of state Democratic party leaders had never heard of him, in 1963.

60 The author is aware of the dangers of using aggregate vote data, especially for as large a political unit as the county. Unfortunately this is the only data available for one of the three elections. Cf. Ranney, Austin, “The Utility and Limitations of Aggregate Data in the Study of Electoral Behavior,” in Ranney, Austin (ed.), Essays on the Behavioral Study of Politics (Urbana: University of Illinois Press, 1962), pp. 91–102 Google Scholar.

61 Wyngaard, John, “Wisconsin Report: Non-partisan Pretense in Judicial Elections is Being Exploded in State,” Janesville Daily Gazette, 03 17, 1961, p. 6 Google Scholar.

62 Milwaukee Journal, 03 8, 1961, p. 8 Google Scholar.

63 Ladinsky, Jack and Silver, Allan, “Popular Democracy and Judicial Independence,” University of Wisconsin Law Review (Winter, 1967), p. 148 Google Scholar.

64 Ibid., p. 149.

65 Ibid., p. 156.

66 Ibid., p. 157.

67 The discrepancy between this figure and the $56,000 figure cited by Jack Ladinsky and Allan Silver, op. cit., p. 150, is due to their inclusion in the total of certain transfer payments from one committee to another which swelled the reported total but did not actually represent new campaign spending. A similar disparity occurs between their report (p. 153) and mine concerning the amount spent in the Heffernan campaign.

68 These survey data and those used in the subsequent section on the Heffernan-Boyle campaign were collected by Ladinsky and Silver for their previously cited study. I am grateful to Professor Ladinsky for his courtesy and cooperation in making them available for use in the present paper.

69 The procedure on the Michigan court is described by Ulmer, S. Sidney, “Leadership in the Michigan Supreme Court,” in Schubert, Glendon (ed.), Judicial Decision-Making (New York: The Free Press of Glencoe, 1963), pp. 16–17 Google Scholar.