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Podcast

Maya Sen: Have U.S. Courts Become Political Prizes?

3.16.20

Photograph by Martha Stewart


Photograph by Martha Stewart

 

 

If judges truly are impartial arbiters of justice, why do politicians fight over who will be appointed to the bench? Are the courts actually a political prize? And are judges really akin to umpires, just calling “balls and strikes”? How does the back-and-forth between the legal profession and politicians shape the quality of nominees to the bench? In this episode, Harvard Kennedy School professor of public policy Maya Sen considers these questions as we discuss the power of the legal profession and the politicization of American courts.

 

Transcript (the following was prepared by a machine algorithm, and may not perfectly reflect the audio file of the interview):

Jon Shaw: If judges are truly impartial arbiters of justice, why do politicians fight over who gets appointed to the bench? Are the courts actually a political prize? Welcome to the Harvard Magazine Podcast, Ask a Harvard Professor. I'm Jonathan Shaw.

Marina Bolotnikova: I'm Marina Bolotnikova. Joining us today for today's office hours is Maya Sen, a political scientist and professor of public policy at the Harvard Kennedy School of Government. Professor Sen earned a master's degree in statistics and then a doctorate in government from Harvard. She also holds a law degree from Stanford Law School. At Harvard, she's an affiliate of the Institute for Quantitative Social Science, The Taubman Center for State and Local Government, and the Ash Center for Democratic Governance and Innovation. Her research in political economy, law, statistical methods, and race, and ethnic politics has appeared in numerous scholarly journals and been widely covered by publications such as The New York Times, The Washington Post, and The Economist. She's the author of Deep Roots: How Slavery Still Shapes Southern Politics, for which she won the 2019 William H. Riker Book Award for best book on political economy.

Today, we'll speak with her about how American courts have become politicized, the subject of her latest book co-written with Adam Bonica called The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentive Shaped the American Judiciary. Welcome, Professor Sen.

Maya Sen: Thank you for having me.

Jon Shaw: First, who can be a judge in the United States? Is that different than in other countries?

Maya Sen: It's a great question, and it's not so different from the way it happens in other countries but there are things that are different about our American system. So in the United States, in order to become a judge, you must have gone to law school. Generally, you went to a prestigious law school, you graduated close to the top of your class, you had a prestigious career in legal practice. Perhaps, you were editor of the Law Review or some other similarly prestigious position, and then you went into work for the government, or as a prosecutor, or something like that. It's not that different in other countries, but there are some things about the American judicial system that are different from other countries.

Maya Sen: So a lot of our policy-making in the United States actually happens through the courts. We're a very litigious society. So that means a lot of our regulation of our environment, of our water, of our consumer products happens through the courts. The courts in the United States are quite powerful from a political and policy perspective. The other thing that I think sets the United States apart is that the legal profession in the United States is quite powerful too. So to become a judge, you must have gone to law school. That's actually not the case in other countries. In some other countries, you can go to a special school where they train people to be judges. But in the United States, you must have gone to law school.

The other way in which the United States is different is that the legal profession is so powerful in the United States that not only are judges all comprised of former lawyers, but many politicians are as well. So lawyers are very, very much overrepresented in the halls of power in the United States. A very high percentage of America's presidents have been lawyers. A very high percentage of U.S. senators have been lawyers. A very high percentage, probably the highest percentage of all, of our state governors have been lawyers.

So sort of going back to your question, “How is the United States different from other countries?” Judges are sort of policymakers in the United States. They're very active across a wide range of regulatory and administrative issues, but it's also the case that the United States is really quite different from other countries in the sense that we rely on one very powerful profession for a lot of our decision-making, political and judicial.

Marina Bolotnikova: What do you see as the costs of a politically powerful legal profession? You mentioned some of them just now. What are some others like access to legal services for people who can't afford them, incarceration rates?

Maya Sen: Yeah. So one of the things that we do in the book is we look across a variety of different countries, mostly Western democracies but other countries as well, to try to see whether the presence of a lot of lawyers in a national assembly predicts different kinds of policy outcomes. So the United States has by far the largest percentage of our national assembly seats held by people in the legal profession. So there are more lawyers here than anywhere else in the world, and there are more lawyers in our government than anywhere else in the world. So, how does that shape our policy?

Well, we have the highest cost when it comes to litigation. So that means that lawyers are making more money here than they do in other countries. This is not a surprise by any means, we know that more people are incarcerated in a per capita basis in the United States than in other Western democracies. The United States also has greater inequality compared to other Western democracies. Also, it's actually very, very expensive to litigate in the United States. One reason might be that high litigation costs mean more profit for lawyers. So if lawyers are writing the rules about how much it costs to litigate, it would make sense that they write rules that actually allow them to make more money. So those are just some simple ways in which having more lawyers in the halls of power actually translates into tangible policy.

Marina Bolotnikova: So in the book, you debunk the idea that judges are just apolitical, this common idea that they're objective interpreting the law or "calling balls and strikes" as it's sometimes called. Why is that common idea wrong?

Maya Sen: Yeah. So it's a very commonly held view, and even this is something that judges say themselves, that they're just calling balls and strikes—that what they're doing is taking the law and they're applying it to a set of facts and they're getting an answer. But there are two ways in which scholars think that that's probably not what's going on. The first is sort of what we observe when we see a vacancy come up on the courts. So we open the book by talking about the example of Antonin Scalia who very unexpectedly passed away and left Barack Obama with an unexpected vacancy on the Supreme Court.

Now, if you think that judges are only calling balls and strikes, then you would think that the Republicans in the Senate would have been very happy, or maybe not happy but willing to let Barack Obama fill this very important vacancy. Instead, what happened? We saw Mitch McConnell essentially deny Merrick Garland, who was Barack Obama's nominee, a hearing for the rest of the Obama presidency. Now, is this an example of a politician, Mitch McConnell, who thinks that judges are only calling balls and strikes? Probably not. He actually thinks that there is an incentive to holding that seat open in the hopes that our Republican would occupy the White House.

Now, what happened? We saw the election of Donald Trump in 2016 and essentially, this was a bet, a gamble that very richly paid off for Mitch McConnell and other Senate Republicans. So with the appointment of Neil Gorsuch, we had a conservative replace a conservative so the power balance didn't change a whole lot, but it effectively prevented Barack Obama from appointing someone who could've shifted the focus of the Supreme Court ideology much more to the left. Then, of course, what we saw is with the appointment of Brett Kavanaugh replacing Anthony Kennedy, that conservative coalition is very much strengthened.

So I guess one way to answer the question is that we see politicians kind of behaving in a way that's really inconsistent with this view of judges as only calling balls and strikes. If they really were, you really wouldn't see this kind of political gamesmanship around every Supreme Court vacancy. That's really what you see. The other way in which we kind of know that there's more to judging than just calling balls and strikes is that there's a lot of scholarship on this. So people like me have pulled down the data and crunched the numbers.

One of the things that we see consistently over, and over, and over again is that judges who are appointed by Republicans tend to vote and rule on cases in a more conservative direction. Judges who are appointed or named by Democrats tend to rule on cases in a more liberal direction. It's a very consistent pattern. You see it through all tiers of the judiciary, but you primarily see it and you most strikingly see it when it comes to those really politically important courts like the Supreme Court and what we would call the Court of Appeals, which is sort of the second level right below the Supreme Court. So it's a very striking pattern and once you see it, it's very hard to not see it. So it sort of very accurately describes the way that judges vote.

Now, it's not a one-to-one correlation. So there are many instances in which judges appointed by Republicans side with liberal parties and vice versa. So it's not perfect, but it definitely describes a wide range of behavior. I'll give you the best example on this—sort of my favorite example to tell to people. A couple of years back, maybe 10 years ago, a bunch of quantitative researchers put together a computer program. The computer program is a very simple computer program. It had a handful of inputs. So I think it was kind of: the rough topic of the case, where in the United States it came from, and I think maybe who won. We would call it the petitioner or the respondent, so which side won? The other input that it had was the relative ideologies of the Supreme Court justices.

So it just had these very simple inputs. They tested this model against a Supreme Court litigators, law professors, and I believe a journalist who covered the Supreme Court. They asked both sets, so the computer program and the experts, to predict the outcome of the next Supreme Court term. Who do you think won, the computer program or the experts? It was the computer program. So the computer program, set up with this very simple, four or five inputs, I think maybe it was six, actually outperformed constitutional law experts in terms of predicting how the Supreme Court would rule. So that's sort of my favorite example on how predictive judicial ideology is.

Marina Bolotnikova: What was the origin of your research on how the U.S. court system has been politicized, and when and how did you realize that you needed to write a book about it?

Maya Sen: We came at it from a couple of different respects, but we actually started by considering the real power that the legal profession has in the United States, which is why in the book, we spent a lot of time developing this idea of the power of the legal profession in the ways that it's been expressed throughout American democracy. So one of the things that distinguishes the United States from other countries, there are lots of things that distinguish the United States from other countries, but one of them is that American democracy was essentially founded at a time when European countries were not democracies. They were monarchies or sort of in that moment of transition.

But European systems of government relied extensively on noblemen to populate forms of government, and certainly, the bench, and also assemblies to the extent that they had them. In the United States, there were no such nobles. So, who would populate the halls of power? One of the things that we argue in this book is that that role fell to the legal profession. So the early American government was really overstaffed and populated by members of the legal profession. Over time, the legal profession actually grew to have a lot of power, not just over Congress and the presidency, but in particular, over the courts. So one of the things that we thought was really important is trying to understand how that power worked.

We, Americans, have effectively delegated one-third of our government to one profession. So, what does that mean for the balance of power in the United States that we have decided that a third of government is going to be run by one profession? So going back to your question of why we became interested in this, we thought understanding that question and why it mattered was really important. At a more basic level, I think my co-author and I were very interested in trying to understand more about the partisan power play between Democrats and Republicans over the courts. The reason why we were interested, not just because we see it all the time, but the courts rule on such important issues that are fundamental to American democracy. So in any given year, the Supreme Court has a voting rights case, something interpreting the Voting Rights Act, something interpreting a provision of the Civil Rights Act, or speaking to the rights of minorities or the rights of people who identify as LGBT. All of these things are really fundamental to the exercise for American democracy.

So if the American judiciary is not working properly, the rest of American democracy is not working properly. Given all of these moving parts, we thought it was really important to try to understand how do the courts become this political booty, as you could call it, between the parties? How did it come about, and what are the strategies they use to try to push back and forth and try to shape the judiciary how they want to?

Jon Shaw: Who are the other players in this fight, and how are they all interacting with each other?

Maya Sen: We think of this as a tug of war with actually three players. We have Democrats and Republicans, who will just be fighting and bickering into eternity, but then we introduce a third player. We would just call this a player into this tug of war, which is the legal profession. So we know that Democrats want to appoint judges who support and defend liberal policies, and conservatives want to appoint judges who are conservative and support and rule in a conservative fashion. But what does the legal profession want? Because they want something too. They want to get something out of this. All judges come from the legal profession, which is something that we leverage over, and over, and over again in the book. So what does a legal professional want to get out of this?

One of the things that we show empirically through the use of probably a million data points is that the legal profession has an ideological presence of its own. It has its own policy preferences, not just about its professional interest, but it actually is a very politically active profession that has its own views. Currently, it leans quite a bit to the left. So this makes the legal profession a natural ally of the Democratic Party, which is something that we show empirically through a lot of analyses in the book. It hasn't always been the case, but that appears to be the case now.

Jon Shaw: When in the past has it skewed differently, liberal or conservative?

Maya Sen: Well, so the legal profession now skews more to left. This is actually something that developed in the '60s and '70s, maybe moving into the '80s. Before that, the legal profession was actually quite conservative. This is going back through centuries of American democracy. Historically, at least, the legal professionals sort of tied with business interests and it was looking to protect its own business interests and that made it skew more conservative. So for much of American history, the legal professional kind of stood with certainly what we would now identify as a Republican Party interests, and more conservative interests, pro-business interests. That started to change quite a bit in the '60s and '70s.

So through the '60s and '70s, more and more women were admitted into the practice of law. Law schools desegregated and started admitting women and religious minorities. Law schools tended to not shift their focus per se, but open their doors to more practice-oriented sorts of courses that put students in direct contact with underserved populations. This, we think attracted more liberal-minded students. From then on, it's sort of been a sorting. You're in your early 20s, you're left-leaning, you want to go to graduate school, you want to help the public good and maybe you don't want to go to medical school because that makes you feel queasy inside, so what do you do? You maybe look at law school as a good alternative.

If you are in your early 20s and you're maybe more right-leaning, what do you do? You maybe consider business school. So that's something that we don't explore fully in the book using quantitative data, but it's patterns that we see that are consistent with our findings, which is that over time, the legal profession has leaned more and more to the left, which presents a problem for conservatives looking to appoint judges.

Marina Bolotnikova: Has the diversification of the legal profession meant that judges now also better reflect the population, the U.S. population as a whole, including women, people of color?

Maya Sen: Yes and no. So that's a great question. So for most of American history, the legal profession, the organized bar, exercised pretty significant gatekeeping over the legal profession. So throughout much of the South, if you were black, you really were restricted in terms of where you could seek out a very elite legal education. If you were a woman, your opportunities were limited. If you were Jewish, your opportunities were limited and not just in terms of the legal education component of it, but also in terms of the practice experience that you could get as a woman, religious minority, or person of color.

So starting in the '60s when that started to change, a host of political and judicial opportunities opened up for women and people of color. So we show this. We document this in the book where we show that once that started happening, then you saw more people on the halls of power and state legislatures that had legal backgrounds and were women and people of color. The other thing that happened kind of around the same time as that Jimmy Carter came into office. I think a lot of people maybe overlook this component of Jimmy Carter's legacy, but he actually made it an explicit priority to reformulate the constitution of the judicial bench, the federal bench by appointing women and people of color. So he took what was largely a uniformly white, male institution and started appointing many women and many people of color onto the bench.

Now, over time, there has been some retrenchment in that. One of the things that has happened that we noticed in our data and I've done other work on this is that there is a rough correlation, obviously, not perfect, between the party of the president who's occupying the White House and how diverse the judicial appointments are with women and people of color being more likely to be appointed by Democratic presidents. That's a trend that certainly has continued into the current occupant of the White House, who I believe has appointed largely a white and male bench. So to answer your question, yes, these patterns have all changed over time and the federal bench at least is much more diverse than it was earlier in American history. But these are patterns that largely ebb and flow depending on who the occupants and the White House is and how important this priority is to him or her.

Jon Shaw: You've shown that conservative graduates of elite law programs have a much higher probability of becoming a judge than their liberal classmates. How does the supply of lawyers, which currently skews liberal, on the one hand, and the demand for conservative judges by lawmakers who currently skew conservative shaped judicial appointments today?

Maya Sen: Well, it's really complicated. You have basically a supply and demand curve where you have a high demand for elite conservative graduates of the top law programs, but at the same time, you don't have very many of those graduates. So, what do you do? So one of the things that we document in the book is that for conservatives, something like the Federalist Society is very important. So let me explain briefly what the Federalist Society is. I think a lot of listeners probably know what it is, but the Federalist Society is an organization that was established, I think, in the 1980s to create kind of an intellectual conservative network. So it was a collection of law professors, law students, practitioners, legal elites in various professional capacities. But they were united together in developing a intellectual, conservative philosophy and also cultivating, networking, and mentoring opportunities for younger conservative law students.

So over time, the Federalist Society has become quite important in terms of nurturing young conservative talent and also making connections between young conservative law students, and law graduates, and those people who are looking to appoint young conservative judges to the federal bench. So in the current example of Donald Trump, I believe he's relied very extensively on Federalist Society recommendations in order to make his judicial appointments. This actually makes sense. If there are quite few young conservative law students coming out of these elite law schools, you need a strong network to identify them, to mentor them, to keep them engaged, to have them consider a career in the federal bench, which is less financially rewarding than a career in the private sector. So you want to maintain that kind of networking structure to identify hot, young talent basically.

We think the relative scarcity of conservative law graduates is one of the reasons why the Federalist Society is so important. Now, it's also a reason why you don't see a liberal equivalent. Why don't you see a liberal equivalent? Well, you could just kind of throw darts at the Harvard Law student directory and you would hit a number of very well-qualified, elite, liberal-leaning students who would be suitable in a number of years for a judicial appointment. So there are just so many more liberal law students and young liberal law graduates that it just doesn't pose that kind of difficulty. So because of that, you don't see this networking structure that characterizes judicial appointments on the right.

So one of the things that we found in the course of presenting this work is that when we talk about this kind of environment at law schools and how easy it is for conservative students to line up clerkships and find judges to work with, that's one of the things that really resonates with law professors that we've presented this to. They've found that this is really consistent with their experiences. That conservative law students are really easy to place in high-caliber clerkships, and it's relatively more difficult to place their liberal-leaning students because the demand just isn't there and the numbers on the supply side are much greater. So we found that that component really resonates with what people are seeing in the real world, which is rewarding for us that we are also seeing it in our data.

Marina Bolotnikova: If one of the principal forces driving the politicization of the judiciary is that there's this difference in the political leaning of the lawyer class and political elites, what explains that divergence? We talked about the supply side of it a little bit, but what about the demand side of it? Why is there this-

Maya Sen: Wait. Say this again. So why are conservatives demanding conservative law students?

Marina Bolotnikova: Well, why is there so much more demand for conservative judges that's so out of balance with the supply side of it?

Maya Sen: Yeah. I mean, the supply side's kind of straight forward. We have ideological sorting that happens. Young people who are more left-leaning, more likely to go to law school. So you have this... I don't want to say glut of young, talented, elite, liberal law graduates, but it kind of is a glut. But the fact of the matter is that Republicans control some majority of state executive mansions, governor's mansions. They control the White House pretty much like clockwork every eight years. They control the Senate right now. So there's just a very high demand for filling judicial vacancies with like-minded lawyers.

This is not part of our book, but one thing that we know is that Republicans in the Senate and Mitch McConnell were really effective in stonewalling Barack Obama's judicial appointments. This goes back to a point that we made earlier, which is that if judges were only calling balls and strikes, Mitch McConnell probably wouldn't have done this. But he left Donald Trump a record number of vacancies. So Trump could really enter into the White House and just really stretch his legs and really make a lot of appointments. What does that mean? That means there's sort of this backlog in terms of the appointments that he needed to make. So, what does he do? He immediately turns to the Federalist Society and says basically, “Who you got? Who are the top young conservative lawyers that I can start naming to all of these vacancies?”

Right now, at this moment, for conservatives it's great. This is a moment where they can really reshape the judiciary. The question is, do they have enough candidates to actually fill all those vacancies that they've piled up over the years? I've seen some different takes on this. We get into this a little bit in our book, but one thing that people have pointed out is that Trump is making so many appointments and he's pushing so many people through so quickly that not only is he reshaping the courts but he's also appointing people with pretty limited experience.

There have been some of the candidates he's name that have been rated not qualified by the American Bar Association. So that raises the question among some legal observers of, “Is he trying to do this too fast? Is he really scraping the bottom of the barrel in terms of judicial appointments?” So there've been a few high-profile, not-qualified nominations that he's had. That's something that we don't really touch upon in the book, but that is something that I've noticed is sort of consistent with argument about the relative scarcity of conservative lawyers at really the high end.

Marina Bolotnikova: How do those Bar Association ratings work? What role do they play in judicial appointments?

Maya Sen: So that's a really good question. So the American Bar Association is a national organization. It's nonpartisan, and it claims not to take ideology into account in terms of how it evaluates judicial candidates. Excuse me. Historically, it was the case that the president would come up with a name and send it over to the American Bar Association, and the American Bar Association would comb through the candidate's writings and talk to people who knew the candidate and then look at their overall record and then reach a recommendation based on, I think, temperament, integrity, and competence to reach a recommendation. The ABA would then pass that back to the president who could then decline to move the candidate forward if the candidate received a poor rating. So then, the candidate would move forward, and it used to be the case that if you had a not qualified rating, you would have a really hard time in the Senate.

Ever since George W. Bush, that's changed a little bit. Republican presidents have viewed the American Bar Association very skeptically. They've accused it of having ideological bias. This is not just the White House, but Senate Republicans have also gone on the floor and made speeches condemning the ABA as being ideologically motivated. I'm somewhat empathetic to that argument given what we know from our data about the left-leaning nature of the legal profession, and the ABA's role in being the national organization would be consistent with that, a left-leaning profession. So I'm actually somewhat sympathetic to that argument.

Some of the research has shown that nominees made by conservative presidents are more likely to be awarded that not qualified rating. George W. Bush actually changed this. He actually decided that his nominees would no longer be vetted by the American Bar Association. So now we're in this weird system where Democrats have their candidates vetted by the ABA, but Republicans do not. So Donald Trump has refused to allow the ABA to pre-clear or pre-vet his candidates. So he's sort of taken up with what George W. Bush was doing. So the ABA sort of still gives a rating to candidates once they've been announced and presented to the Senate, but they are no longer working with the White House to pre-clear candidates privately. So it's strange, strange world we're in right now.

Marina Bolotnikova: This is connected to your point in the book that when the ideological difference between elected officials and the legal profession is so dramatic that legal professionals will increasingly rely on what they see as objective measures of quality, right? So you could say, “This is objective. These are our objective ratings.”

Maya Sen: That's right. The research actually does show... This is not my work but this is the work that other political scientists have done showing that candidates named by Democrats tend to get those higher ratings. So that's totally consistent with this argument that there might be ideological bias by the ABA and et cetera, et cetera. But it also kind of supports this idea that Democrats have in their minds, which is that you should be appointing people who are objectively qualified, who have experience, and you should not be paying attention in any way to partisanship or ideology. But it turns out that that's a really good strategy for Democrats because, again, if I were to pull up the Harvard Law School director and just throw darts at it or just kind of randomly pick some names out of highly-qualified people or Yale Law School, or Stanford Law School, or whatever, they would actually most likely be liberal-leaning people who are probably Democrats.

So just kind of picking people on the basis of these “objective” criteria ends up being a pretty smart strategy if you're a Democratic politician because you're going to end up with judges who actually have like-minded preferences. So it's not a bad way to go. Now, if you're Ted Cruz, or Tom Cotton, or Mitch McConnell, this is not what you want to do at all. You actually want to be able to ask people about their politics or find out what their leanings are politically or ideologically because you know the deck is stacked against you in terms of the candidate pool. You know that candidates coming out of these prestigious law schools or out of the Department of Justice, or these prosecutors, federal prosecutors, you know that they're most likely to be Democrats and you know that they're most likely to be liberal. So you actually want a process that allows you to have them be able to signal some sort of partisan or ideological leaning like through the Federalist Society, or you want a selection system that actually allows you to figure out who is conservative and who's not.

So one of the things we argue in the book is that conservatives actually much prefer judicial selection systems that allow them to do that. So they like judicial elections, they like appointments, especially they like partisan elections. They like things where a candidate's ideology and partisanship is actually very transparent. Democrats tend to not prefer those sorts of judicial selection systems.

Jon Shaw: You know that having an ideologically representative court system might be a normative good. Does that mean first that believing in the impartiality of the judiciary is simply naïve and second, that the current system is not as problematic as it might appear?

Maya Sen: Those are two heavily loaded questions [laughs]. Yeah. So I think in terms of whether this might be more representative, I think that was sort of the flavor of the first question. If you think about it, if we totally avoid any kind of ideological selection of our judges, if we choose judges completely based on their qualifications, and where they went to law school, and what kind of clerkship they had, and their first job out of law school, or something like that, their years of experience, we would end up with a judiciary that's pretty out of step with the American electorate. We would end up with a judiciary that kind of looks like the law students at Harvard, Yale, Stanford, Columbia, any number of elite law schools which lean to the left.

Depending on your political flavor, you might really like that. This might be a really good deal to you. But to most Americans who probably don't see eye to eye with this viewpoint, having more representation on the judiciary's probably better. So if you lean more conservatively than the Berkeley Law School student body, which most Americans probably do, you probably want to see more ideological diversity in the appointments made to the California courts. So throughout the book, we kind of take this into account and point out that, “Hey. If we're serious about the courts being more representative, then introducing selection on the basis of ideology's not so bad.”

That's not to say that the attempts to interject partisanship and ideology into selecting judges is necessarily good. This is sort of outside of our research, but there are studies suggesting that partisan election-select judges who are basically looking out for the next election. So they're behaving in ways that are differently from judges who are appointed. They tend to be harsher on criminal defendants, and how harsh they are depends on how far away they are from the next election. So there are other reasons why you might not want your judges to be selected on the basis of something like an election or even on the basis of an appointments.

So I think the ultimate takeaways in terms of the implications of the work and of the normative considerations is that it sort of depends, and this is the way that we conclude it, kind of depends on what you want your courts to look like. Do you want them to look like the legal profession? If so, we can recommend to you a judicial selection mechanism that would get you that. Would you like them to look like the people? We can recommend a selection mechanism that would get your courts and your judges to look like the people. Or, do you want them to look like politicians? Because we have a recommendation for you in that regard too. The question we have for policymakers is, “What do you want your courts to look like?” We can get you there.

Marina Bolotnikova: Do you see a way out of the politicization of the court system that we see now?

Maya Sen: No, the simple answer to that is no. I mean, so long as American courts rule on issues that are fundamental to political life in the United States, and 200 years has shown us that they're very central to that, so long as courts continue to play that politically important role, they will continue to be political entities. So we don't see a way out of that one. One of the things that I think is important to note about our work and a point that other people have made too is that you could try to strip all politics out of the selection of judges. So you could introduce what are called merit commissions. These are commissions that are put together by bar associations and just look at the candidate's objective qualifications. Or, you could just kind of select people on the basis of qualifications outrightly. Even doing that is going to get you a court that has an ideological leaning. So we could try to strip all the politics away from the selection of judges, but that doesn't mean that the results in court that you get will be devoid of politics.

Jon Shaw: Thank you for joining us today, Professor Sen.

Maya Sen: You're welcome.

 

Ask a Harvard professor is hosted by Jonathan Shaw and Marina Bolotnikova, and produced by Jacob Sweet. Our theme music was created by Louis Weeks. This second season was sponsored by the Harvard University Employees Credit Union and supported by voluntary donations from listeners like you. To support the podcast, visit harvardmagazine.com/supportpodcast. If you enjoyed this episode, please consider rating and reviewing us on iTunes. Contact us with questions at [email protected]

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