Randy Shepard, who served as the chief justice of the Indiana Supreme Court for 25 years, retired from the court in 2012 as the longest-serving state chief justice in American history. A lifelong Republican in a red state, Shepard has gone through the merit selection process and run in multiple elections. He once told Mother Jones magazine regarding judicial elections that “What’s at stake in these big-money elections is the promise of due process and an impartial court,” he told me. “Do I as a citizen walk into that courtroom standing on a relatively level playing field?”
He offered up a hypothetical from a law review article he wrote that, he proudly noted, was cited by Justices Ruth Bader Ginsburg and Anthony Kennedy in the Massey Energy case—the one where the high court ruled that a judge who’d received massive campaign contributions connected to a company had to recuse himself from a case involving that company. “Say you’re going before a trial judge making a decision about the custody of your grandchildren, and your evil son-in-law or daughter-in-law had made a very large contribution to the judge. How would you feel about that? You wouldn’t feel very optimistic, would you?”
The legitimacy of our courts rests on their capacity to give fair answers to controversial questions. Yet Americans are divided in their beliefs about whether our courts operate on unbiased legal principle or political interest. Now a study by two Harvard Law School professors, Alma Cohen and Crystal S. Yang, examined 15 years of data on 1,400 federal trial judges, and found that “that Republican-appointed judges sentence black defendants to 3.0 more months than similar non-blacks and female defendants to 2.0 fewer months than similar males compared to Democratic-appointed judges, 65 percent of the baseline racial sentence gap and 17 percent of the baseline gender sentence gap, respectively. These dif- ferences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.” The study found that Republican-appointed judges “sentence black defendants to 3 more months than similar non-blacks and female defendants to 2 fewer months than similar males compared with Democratic-appointed judges,” and that “[t]hese differences cannot be explained by other judge characteristics.”
These findings suggest that presidential appointments of judges can significantly affect nationwide racial and gender gaps in sentencing. Yang and Cohen explain, “[d]uring an average four-year term, a Republican president has the potential to alter the partisan composition of the district courts by over 15 percentage points, potentially increasing the racial and gender sentencing gap by 7.5 and 3 percent, respectively.”
The authors also note the limitations of the study, explaining, “The precise reasons why these disparities by political affiliation exist remain unknown and we caution that our results cannot speak to whether the sentences imposed by Republican- or Democratic-appointed judges are warranted or ‘right.’”