Beginning their narrative with the battle over the Supreme Court vacancy created by the death of Antonin Scalia in March 2016, Adam Bonica and Maya Sen highlight how American political polarization has influenced the selection of judges at all levels of the judiciary. Although scholars and journalists debate when these battles began, there is significant consensus that increased polarization has led to increasingly bitter battles over the confirmation of judicial nominees. The selection of elected judges is no less contested; as early as 1985, Roy Schotland noted that judicial elections “have now become noisier, nastier, and costlier” (“Elective Judges’ Campaign Financing: Are State Judges’ Robes the Emperor’s Clothes of American Democracy?” Journal of Law & Politics 76). Bonica and Sen reframe these judicial selection battles as a tug of war not between Republicans and Democrats in the U.S. Senate, state legislatures, or the electorate but as a tug of war between ideologically unaligned legal elites and elected officials. When these groups are far apart, the authors argue, the elected branches seek to gain ideological control of the judiciary by reducing the bar’s role in judicial selection. In current American politics, Republican politicians will emphasize judicial reform, whereas Democrats will emphasize merit and qualifications. The book offers innovative theory, an extraordinary dataset that is used creatively and presented elegantly, and arguments that offer interesting opportunities for additional empirical testing in the near and long term.

Bonica and Sen make a significant contribution to our understanding of judicial politics by outlining the integral role that the American Bar Association (ABA) and state bar associations play in shaping the judiciary. The role of the ABA in rating federal judicial nominees is well known, but this book highlights less public ways in which the bar shapes the judiciary. Their argument builds on theories of bureaucratic or regulatory capture but stresses that the legal profession’s capture of the judiciary goes beyond any other institutional capture present in American politics. As Bonica and Sen note, “the bar’s relationship with the courts represents a truly exceptional case of professional capture…because lawyers have professionally captured an entire branch of government,” adding, “we refer to this professional capture as constitutional capture” (p. 83). Three factors contribute to a constitutionally captured judiciary. First, the bar has long had a significant role in all judicial selection. Second, the bar controls the code of conduct that applies to attorneys and the code of conduct that applies to judges. Finally, through tradition or legal mandate, judges are lawyers, and therefore the bar controls who can be considered as a candidate for the judiciary.

Bonica and Sen note that for significant portions of American history, the bar and electoral officials were ideologically aligned. However, over time, the bar has increasingly moved to the left of the elected branches, creating the conditions for a tug of war. Bonica and Sen bring background data on federal judges, state judges, and attorneys together with campaign contribution data from the Database on Ideology, Money in Politics, and Elections (DIME). Data on nearly 500,000 judges and attorneys support a series of visually compelling and well-explained graphs that build a convincing narrative of the left-leaning tendencies of the American bar. Cross-sectional and time-series comparisons of attorneys to other attorneys, different professions, levels of courts, and elected political institutions support this narrative.

The chapter on federal judicial selection contrasts the ideological differences between graduates from elite law schools and other law schools, highlighting not only problems in the supply of qualified potential conservative federal judges but also expanded opportunities for young conservative attorneys to contend for federal judgeships. The notion of the bar versus elected branch tug of war is weakest in this chapter. Although the chapter focuses on the ideological makeup of the legal elite and Senate Republicans, the concept of the tug of war gets lost. Senate Republicans have changed Senate norms, delayed and denied hearings, and ignored ABA recommendations. The ABA has so little pull on its side that there is no real tension in this tug of war.

The authors’ research on federal selection makes a convincing case for viewing the judiciary as a political prize, but this hinges more on the battle between liberal and conservative elected officials than on a fight between the liberal bar and conservative elected officials. Additionally, the evidence of Republican embrace of reform is not clear. Is decrying “activist” judges similar to the structural reforms in the states? Although Democrats certainly rely on notions of merit and qualifications to buttress their arguments in this battle, Senate Republicans have had to worry little about actual structural reforms. Given President Biden’s creation of the Presidential Commission on the Supreme Court of the United States, can we expect reform calls from Democrats rather than Republicans? More fundamentally, the key political institutions in federal judicial selection are less democratic than state legislatures—the Senate (because of equal representation regardless of state size) and the presidency (because of the electoral college). Would incorporating this difference into the game alter the expectations in a way that would strengthen the connection between the theory and the empirical evidence?

The chapters on state selection provide strong evidence of professional capture and the resulting tug of war. Bonica and Sen demonstrate the state-by-state ideological differences between the bar, judiciary, and politicians—and the importance of judicial selection mechanisms in shaping those differences. States with nonpartisan elections or merit systems have smaller ideological gaps between the bar and the judiciary, and greater ideological gaps between the judiciary and elected officials. Ideologically, the judiciary is more closely aligned with elected officials in states with appointed or partisan-elected judges. After establishing these differences, the authors offer convincing evidence of how political elites try to reform selection mechanisms to reclaim control over the ideological makeup of the judiciary. Case studies of recent reform efforts in Florida, Kansas, and North Carolina illustrate the approaches elected officials are willing to take to gain control, and the ways in which the bar resists those efforts. The arguments and empirical work in these chapters are convincing and compelling.

Bonica and Sen also provide evidence of the policy and legal implications of the courts as a political prize. Some, such as increased publication of dissents in the federal Courts of Appeals, are likely negative. Bonica and Sen argue that other implications may be “a part of the healthy process of American democracy” (p. 290), especially in light of the extraordinary power that legal elites have in America. This statement is a challenge to scholars, and this book, more generally, should challenge how scholars look at future judicial selection reform efforts. The potential goes beyond just selection. Judges, even those selected to provide clear ideological shifts in policy outcomes, occasionally surprise or disappoint their supporters. Will politicians in states that have reformed selection but not obtained the desired outcomes turn to broader reforms of the judiciary and the legal profession? How will this shape American democracy?

The Judicial Tug of War is an outstanding book. The arguments are clearly laid out and supported by extraordinary empirical work. The chapters on state selection are more compelling than the chapters on federal selection, but the book offers interesting and challenging ideas along with evidence that will shape judicial scholarship for many years.