JUDGING AND THE APPOINTMENT PROCESS
What effect can we see of the appointment process on the nature of judging? Much of the evidence is consistent with our hypotheses. Justices appointed in the united States tended to be the most polarized both in terms of how spread
Figure 3-10 Fraction of dissenting opinions per year (number of dissenting opinions in the year divided by the total number of decisions in the year) over the period from 1970 to the early 2000s. The box shows the middle 50 percent of the data for each country, and the line in the box shows the median value of the fraction of dissenting opinions over the period. The lines above and below each box provide the maximum and minimum fraction of dissenting opinions for each country in the period. As with Figure 1-2, the united States had by far the highest rate of dissenting over the period and India by far the lowest. Australia and Canada had similar levels of fraction of dissenting opinions, with the uK slightly less.
out and consistent they are in their voting; they also have the greatest connection between the party appointing them and markers of their voting, and dissented at by far the highest rate. The united States is an outlier on the high end on all these indicators.
India is the outlier at the other extreme in terms of the process and some aspects of judicial behavior. The judges appoint new members of the bench. They are also the least polarized in the sense that there is no indication of consistency in voting across areas of law, and they almost never dissent compared to other countries. They do, however, appear to be somewhat spread out in terms of their voting on the bench.
In between these extremes lie the uK, Canada, and Australia. For each, the executive has the power to appoint justices, and the processes are less transparent and generally less overtly political than the uS process. At the same time, they have intermediate levels of polarization, connection to the party of the appointer, and dissenting. Interestingly, there are differences across these countries. Canada and Australia have less spread, are more consistent, and have more dissents than the uK House of Lords.
There then is some evidence that the design of the appointment process is correlated with differences with how judges decide, though the evidence is mixed and, obviously, correlation is not necessarily causation. We will see that other design elements influence how judges decide, particularly how norms of dissenting tie into the level of disagreement on the court. We will start with a topic that is related or at least analogous to the appointment process—the impact of hearing cases in panels rather than en banc.