PICKING FEDERAL JUDGES: LOWER COURT SELECTION FROM ROOSEVELT THROUGH REAGAN by Sheldon Goldman.  New Haven, CT: Yale University Press, 1997. 428 pages. Cloth $45.00. ISBN 0-300-06962-6.

Reviewed by Sue Davis, Department of Political Science, University of Delaware. E-Mail: Sue Davis <suedavis@UDel.Edu>.
 

Since 1978 when his article on Jimmy Carter’s nominations to the federal courts appeared in JUDICATURE Sheldon Goldman has kept Law and Courts scholars abreast of the judicial appointments of each president. Professor Goldman’s important research on judicial selection actually began much earlier. In fact, PICKING FEDERAL JUDGES is the culmination of work that he began in the 1960s as a graduate student at Harvard University. Thus, the book represents a commitment of more than thirty years. Considering the patience, perseverance, focus, and determination such a long-term endeavor requires, the final product is an impressive accomplishment. PICKING FEDERAL JUDGES is commendable for several additional reasons, however, as I shall explain.

The book contains a wealth of information about the selection of federal judges beginning with Franklin Delano Roosevelt and concluding with Ronald Reagan. Goldman has mined a tremendous variety of sources including presidential papers from all presidents from Roosevelt through Reagan and Justice Department files. He has interviewed former officials, judges (to whom he also submitted questionnaires), and the staffs of the Senate Judiciary Committee and the American Bar Association. As a result, the book offers a comprehensive —indeed, almost encyclopedic— treatment of the intricacies of the judicial selection process over a period of fifty-six years.

Goldman has structured his analysis around three presidential agendas: partisan, personal, and policy. His systematic and detailed presentation of the selection process of each administration quickly reveals, however, that an attempt to classify appointments by those three agendas is merely a starting point for understanding a tremendously complex process. The different agendas are sometimes distinguishable but frequently they are interwoven, making it impossible to categorize a president’s appointments. Moreover, the interests of other political actors are constantly present to complicate the analysis.

The book is organized as follows. After a quick overview of the early history of judicial selection from the Constitutional Convention through the early presidents (he relies heavily on the work of Kermit Hall here), Goldman provides a straightforward account of the details of the formal selection process. He then turns to a detailed examination of judicial selection for each of the presidents. Devoting a separate chapter to each (with the exception of one chapter each for Kennedy/Johnson and Nixon/Ford), Goldman deftly places each administration into political context with a quick historical overview. His examination of the president’s involvement in judicial selection is followed by a consideration of the president’s policy agenda and the extent to which that agenda influenced judicial selection. He then addresses the role of the senators. He turns next to an examination of the extent of partisan considerations and the role of the attorney general and other political figures in the selection process. Acknowledging at the outset that racism and sexism have played a major role in the selection process, he considers the impact of gender and race in the selection process for each president. Each chapter concludes with a demographic portrait of the appointees during the administration. In the final chapter, Goldman offers a comparison of the overall demographic trends of the fifty-six-year period as well as a general conclusion about the selection process.

Some of Goldman’s findings are not surprising. For example, Roosevelt’s involvement in the selection process increasingly reflected a new concern with the policy agenda after his reelection in 1936 (p. 19). Other findings that are not so predictable include Richard Nixon’s apparent lack of concern about specific appointments. When his findings are predictable and when they are more surprising the wealth of anecdotes that he has gathered emphasize the political complexities and nuances of the selection process in an intriguing way. The clash between President Roosevelt and the Virginia Senators over the nomination of Floyd Roberts, which led to a recess appointment, and ended in a defeat for the administration is a case in point (pp. 42-43). Another is the apparent personality clash between Attorney General Francis Biddle and William Clark that resulted in Clark’s failure to obtain a seat on the Third Circuit (pp. 49-50). Such illustrations abound throughout, ranging from the racist Harold Cox’s dishonest reassurance to Attorney General Robert Kennedy that he would follow the Supreme Court’s interpretation of the Constitution (p. 167) to Ronald Reagan’s speech in 1986 in which he proclaimed that, "We don’t need a bunch of sociology majors on the bench" (p. 302).

Although the Carter Administration’s reforms and its efforts to secure nominations for women and minorities are well known, Goldman provides an abundance of information, shedding new light on the subject. For example, details about the tensions between the Justice Department under Griffin Bell and the White House under the direction of White House counsel, Robert J. Lipshutz adds to what we already know about resistance from Senators. The role of the ABA in rating potential nominees has been important since President Eisenhower instituted the practice in 1956 (the plan was actually worked out during the Truman Administration but was not implemented). As Goldman explains, the ABA gave a significant number of Carter’s nontraditional prospective nominees a rating of "not qualified". He also notes that the administration went along with over 98 percent of the ABA’s ratings (p. 268). What were the reasons for the low ratings? I was disappointed to find no hints here even though Goldman’s extensive research must have left him with some ideas about it.

Reagan’s reversal of Carter’s reforms and his emphasis on ideological considerations in his appointments are also developments in the recent history of judicial selection that are well known. But just as he did with his treatment of Carter’s selection process, Goldman provides many more details and insights than have previously been available particularly about the formalization of the process with the Justice Department’s Office of Legal Policy and the Federal Judicial Selection Committee in the White House. He estimates that at least 75 percent of Reagan’s appeals court choices were policy-agenda appointments with the balance based on partisan-agenda concerns. He could find no evidence of personal agenda coming into play.

PICKING FEDERAL JUDGES is the most important contribution to the literature on judicial selection since Harold Chase’s FEDERAL JUDGES: THE APPOINTING PROCESS (1972). The wealth of information and careful documentation will make it an invaluable reference tool. The charts that provide demographic information on the appointees of each administration will be particularly useful. The clear and straightforward way that Goldman explains the history of the selection process will also prove to be helpful for readers who are either new to the subject of judicial selection or who are generalists in the field of American politics. I hope we may look forward to a Second Edition of PICKING FEDERAL JUDGES that will not only include the Bush and Clinton appointments but will provide insight into the current controversy caused by the Senate Judiciary Committee’s reluctance to move forward on the Clinton Administration’s nominees.