Judges

U.S. Federal Judges

How then do federal judges decide the cases that they decide? On one hand, they work as agents for people who retain their jobs only if they maximize votes. On the other hand, those people have largely jettisoned any attempt to reward or punish them for what they do or do not do.

In effect, federal politicians rely on screening rather than monitoring to control their judicial agents. Having abandoned most of the ex post incentives by which they might control judges, they rely instead on their ability to pick the people they want. Predictably, they appoint judges who are in their forties and whose proclivity for work and political preferences are publicly observable. In a world where two political parties alternate in having power, politicians, by screening but not monitoring, (1) increase their ability to control the courts in the future but (2) decrease their ability to control currently sitting judges.

In prominent, politically charged cases, a federal judge's political preferences explain much of the way [Page 841]she decides the case. This inquiry is possible, of course, because at the national level, two parties have alternated in power. As a result, at any given time the federal courts have included judges appointed by each party. Obviously, this situation does not occur in every democracy.

Judges do decide some cases with an eye to potential promotion. Granted, for most judges in most disputes, the odds of promotion are too small to affect what she might do. On the margin, however, even tenuous odds can make a difference. In discrete categories of cases in some judicial districts, the prospect of promotion does indeed shape the decision a judge makes. U.S. politicians also retain the ability to reverse court decisions (at least future decisions) through legislation. According to some studies, the probability that they might reverse decisions can affect judicial decision making.

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