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Article

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Abstract

I will offer a critique of the increasingly popular claim that judging is "ideological" in nature. That claim rests on a growing body of empirical literature that correlates federal judges' decisions with some measure of their ideology, typically the political party of the president who appointed them. I'm going to argue that proponents of this position, which I'll call the "ideology thesis," haven't adequately specified the mechanism by which they understand values to be influencing judges. These proponents have failed, in particular, to distinguish between values as a self-conscious motive for decisionmaking and values as a subconscious influence on cognition. Once that distinction is made, it becomes clear that the evidence cited to support the ideology thesis fits just as well with another account, which I'll call the "cultural cognition thesis." Of course, I'll also explain what the difference between ideology and cultural cognition is, and why it makes a difference, practically, whether it's ideology or cultural cognition that's affecting judges.

Date of Authorship for this Version

2009

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