The Politics of Selecting the Bench from the Bar: The Legal Profession and Partisan Incentives to Politicize the Judiciary∗

The American judiciary, like other branches of government, has increasingly come under attack as both ideologically driven and polarized. At the same time, scholars have limited understanding of the extent to which politicization has shaped the courts or how its influence varies among tiers of the judiciary and across states. We present a simple theory of judicial politicization that models the ideological composition of the judiciary as a function of the ideological distributions of attorneys and politicians. The model generates predictions for when parties have the greatest incentives to politicize judicial selection and how these efforts will reshape and polarize the judiciary. We find empirical support for these predictions using an original dataset that captures the ideological positioning of nearly half a million judges and lawyers who have made campaign contributions. To our knowledge, our study is the first to provide a direct ideological comparison across tiers of the judiciary, or between judges and lawyers. ∗Comments and suggestions welcome. Many thanks to Tom Clark, Justin Grimmer, Jenny Shen, and Arthur Spirling for helpful feedback. We are also grateful to conference or seminar participants at Princeton, Rochester, and Stanford. †Department of Political Science, Stanford University, Encina Hall West 308, Stanford, CA 94305 ([email protected]). ‡Harvard Kennedy School, 79 John F. Kennedy Street, Cambridge, MA 02138 ([email protected], http://mayasen.org).