POLITICS AND JUDGMENT IN FEDERAL DISTRICT COURTS by C.K. Rowland and Robert A. Carp. Lawrence, KS: University Press of Kansas, 1996. 211 pp. Cloth $29.95.

Reviewed by Kimi King, Department of Political Science, University of North Texas.
 

The release of POLITICS AND JUDGMENT IN FEDERAL DISTRICT COURTS signals how far we have come, and yet how far we need to go, in understanding trial court decision-making. The book is based on the most comprehensive data set of federal district court judges and case outcomes to date--a compilation of over 45,000 cases spanning 55 years, from the beginning of the New Deal to the end of the Reagan era. The research updates earlier work Carp and Rowland's earlier work (1983) that examined key correlations between judicial behavior and judicial attributes.

The 1996 work expands the authors' previous contributions in three ways. First, it evaluates the role of senatorial courtesy in the judicial nomination process, highlighting key differences between executive administrations and those involved in the selection process. Second, it expands the data to include a limited number of unpublished decisions from two selected jurisdictions. Finally, the work provides a firmly grounded theoretical approach--the social cognitive paradigm--for theorizing about judicial behavior. Overall, the work adds to the significant contribution already made by these scholars, and is destined to become another seminal work on the federal district courts.

The second and third chapters reiterate the themes explored by Carp and Rowland (1983) and present new findings based on the updated data. There is nothing really surprising in these chapters compared to the authors' earlier work, save the finding that the effects of party preferences (represented by Democratic and Republican Presidential cohorts) and regional differences (North-South) are less notable when the data set is expanded to include cases from 1978-88.

The presidential cohort results demonstrate that most First and Fourteenth Amendment cases evoke partisan-preferences that lead judges to resolve these disputes along party lines. Economic regulation cases also evoke these same partisan decisional patterns. Rowland and Carp account for what is an anomaly, given their earlier findings, by arguing that it is the unique role in fact-finding that explains this result and that the deference to state and local norms encourage this disparity. After all, federal judges have ties to the local political culture of the state where they reside. Thus, when appellate judges review these cases they defer to the specialists and are more likely to vote their partisan preferences.

This explanation cannot account, however, for why state habeas corpus pleas, right to privacy claims, gender discrimination cases, and environmental regulation rank so low on the list of partisan-based decision-making disputes. The authors' explanation for this aberration is that the Supreme Court has sharply restricted habeas relief and that the appointment-based criteria for privacy, gender, and the environment are not as important for district court appointments.

These explanations do not fit with the argument that judges defer to the local "specialists." Perhaps the end conclusion from this chapter is that extralegal theories cannot be all things to all substantive legal claims. Regardless, the research illustrates that we should begin systematically to gauge the role that the Supreme Court plays in shaping the signals sent to the lower echelons of the judicial hierarchy (viz. Songer, Segal, and Cameron 1994), while simultaneously examining the case specific constraints that limit judicial discretion.

One of the more interesting highlights of the book explores O'Brien's empirical research (1988) that investigated systematically the role of home state senators in the recruitment and confirmation process. Most work evaluating this relationship emphasizes the presidential-senatorial interaction (McFeeley 1987), and the effect of commission selection processes on senatorial approval of judicial candidates (Slotnick 1979, 1984; Neff 1981). Rowland and Carp document that differences between presidential cohorts (Carter and Reagan) and nomination procedures correlate with liberalism.

What needs to be done is to expand the time frame across presidential nominees and examine in detail variants in other case types and presidential cohorts. As Rowland and Carp (1996) themselves acknowledge, different presidential administrations were committed to a lesser or greater degree in appointing ideologues to the federal courts. Similarly, different presidents had different political and policy agendas when nominating judges. Nixon was committed to appointing "law and order" candidates (Rowland, Carp, and Stidham, 1984), while Truman was committed to repaying political debts to persons who had supported him during his bid for the presidency (O'Brien 1988). Carter was committed to not only appointing pro-civil rights judges, he was aggressive about appointing a bench that more accurately reflected the demographics of American society (Goldman 1981).

What the results from Rowland and Carp's study highlight is that we need to find better ways of measuring judicial ideology rather than rely on traditional measures (i.e. presidential party as a surrogate). Similarly, the authors are correct when they argue that we should consider the role that other policymakers play in the nomination process. The authors are to be praised for attempting to provide a more complex and richer depiction of the judicial nomination process.

Nonetheless, we need models that account for idiosyncrasies in the nomination process if we are to reach generalizable conclusions. After reading the 1996 work, scholars should be troubled by the extent to which the role of the home state senators varies among different presidential administrations. It is the interaction between the White House, the senators, and the attributes of the judges themselves that makes understanding the effects of nomination so difficult. Indeed after examining Chapter Seven of the volume (dedicated to the social cognitive paradigm), scholars of the courts would do well to question whether different judges have different motivational levels for becoming federal district court judges in the first place.

A welcome feature of the volume is the chapter comparing published to unpublished opinions. The debate over the differences between these two kinds of decisions seems to stop every exciting judicial discussion by exploring the less theoretical concerns of our discipline regarding selection bias and data availability. Chapter Five expands on the limited work available about unpublished opinions (Songer 1988; Siegelman and Donohue 1990; Olson 1992

Rowland and Carp's analysis is limited to cases in Kansas City, Kansas and Detroit, Michigan for the years 1981-87. But it breaks new ground in covering differences between two types of opinions (criminal and civil rights) and among three presidential cohorts (Nixon, Carter, Reagan). Unpublished opinions in civil rights and criminal cases outnumber published opinions, and differences in appointment effects on liberalism also vary significantly between the two.

While Rowland and Carp attribute this anomaly to differences in fact-finding discretion, perhaps we should inquire about the bureaucratic attributes of the trial court process and the judges themselves. Rowland and Carp borrow from the bureaucratic literature in developing their social cognitive theory of judicial decision-making. Litigation rates and cases taken to trial may account for the anomalies. Increased caseloads enhance fact-finding discretion because of the cognitive limitations involved in the judge's ability to process information. These bureaucratic constraints associated with increased caseloads lead to decreased amounts of time associated with fact-finding and lead to greater discretion in resolving disputes. Because of the way in which the data are aggregated (presidential cohorts), it is impossible to tell whether some of the cohort disparities are coming from caseload constraints.

The most important contribution of Rowland and Carp's work comes from its examination of the social cognitive paradigm. After a cursory critique of behavioral/attitudinal models of judicial research (Chapter Six), the authors proceed to investigate organizational and psychological contributions toward our understanding of judges as decision-makers. The critique of the attitudinal model is right on point, and we should be reluctant to apply models of appellate court decision-making to trial court decisional process. Students of the judiciary would do well to heed the concerns raised by the authors in Chapter Six and take seriously the social cognitive paradigm they develop in Chapter Seven.

The social cognitive paradigm (Chapter Seven) is unique because it draws from other social science disciplines and from other institutional research on bureaucratic behavior. Their proposal for examining "shrinkage" versus "slippage" in the judicial hierarchy will give students of trial courts new terrain for consideration. The conceptualization of cognitive influences explicitly acknowledges the multi-dimensional role that judges play as cognitive decision-makers. They are at once partisan policymakers with preferences who must incorporate ambiguous signals from their appellate counterparts while synthesizing legal rules to reach outcomes in particularized disputes. Perhaps the judicial mind is more complex than scholars have assumed.

Turning from these significant contributions, the selection of cases in the authors' research is still a cause for some concern. As in their 1983 study, Rowland and Carp selectively exclude cases depending on whether the case can be classified as having a liberal or conservative outcome. In fact, about as many cases were excluded as were included. Additionally, it is not clear from the text whether these are procedural or substantive decisions. There are legal reasons to believe that procedural decisions do not evoke partisanship (either Republican or Democrat), because the Federal Rules of Civil Procedure and Evidence codify discovery and standing principles for litigants. This might account for why both Republican and Democratic judges are more moderate in the unpublished opinions analyzed in Chapter Five. These decisions tend to be routine procedural cases. As such, partisan politics and the judges' personal "schemata" are not as important as the bureaucratic and legal issues involved in pre-trial decision-making.

Further, in highly complex litigation judges may issue numerous written opinions, and any one conflict may thus be counted multiple times in the data set. This raises yet another issue of selection bias (there's that ugly debate again)

These criticisms aside, Rowland and Carp analyze the largest data set on federal district court decisions yet created for scientific analysis. Although it is not yet available for public use, the findings it has supported have continued to shape judicial theories. In contrast, the essentially comprehensive Federal Judicial Center data set (available from the InterUniversity Consortium for Political and Social Research) is of limited utility for analytical use because it deletes the trial judges name from the observations, making generalizations about individual judicial behavior virtually impossible.

Rowland and Carp remain pioneers in the study of federal district court behavior. This volume represents the accumulation of two decades of their distinctive achievements. Nothing should detract from their accomplishment linking traditional theories with new judicial frontiers for hypothesis testing. Nevertheless, missing from the chapter on the social cognitive paradigm is an actual application of the theory to data, other than via an anecdotal example analyzing judicial bypass decisions in abortion cases.

Another omission is a comprehensive model of decision-making that includes the variables from Chapters Two through Four. Such a model would allow us to compare the relative influence of the individual variables that correlate with judicial liberalism or conservatism.

This book is appropriate for upper division courses in judicial process, but will be the most valuable for graduate courses in judicial behavior. It is useful as a supplement to regular textbooks on trial court outcomes and provides an excellent synthesis and critique of trial and appellate court research (Chapter Six). It should be mandatory reading for Ph.D. comprehensive examinations. The theory presented in Chapter Seven will provide countless research proposals in graduate classes and will undoubtedly be the basis of future scholarly endeavors.

On final note regarding data availability. As students of the courts, we should begin linking different data sets to examine the role of judicial hierarchy in shaping trial court outcomes. With the wide usage of the U.S. Supreme Court data set (see Segal and Spaeth 1993), and the soon to be released Songer data set on the appellate courts, judicial scholars should examine the linkages between the Supreme Court, the Circuit Courts of Appeal, and the federal district courts. We could explore whether appellate and trial judges behave in ways that are consistent with the preferences of the other policy actors responsible for their judicial appointment. The release of the Barrow, Gryski, and Zuk biographical data set on court of appeals justices allows us to examine the background characteristics in detail of some trial court judges (n=260) who have subsequently gone on to become circuit court judges. These data put us in a position to explore in depth some of the "cognitive conceptualization[s]" proffered by the authors (pp. 171-173).
 

References

Carp, Robert A. and C. K. Rowland. 1983. POLICYMAKING AND POLITICS IN THE FEDERAL DISTRICT COURTS. Knoxville: University of Tennessee Press.

Goldman, Sheldon. 1981. "Carter's Judicial Appointments: a Lasting Legacy." JUDICATURE 64:344-55.

McFeeley, Neal. 1987. APPOINTMENT OF JUDGES: THE JOHNSON PRESIDENCY. Austin: Univ. of Texas Press.

Neff, Alan. 1981. "Breaking with Tradition: A Study of the U.S. District Judge Nominating Commissions." JUDICATURE 64:256-78.

O'Brien, David. 1988. JUDICIAL ROULETTE. New York: 20th Century Fund/Priority Press.

Olson, Susan. 1992. "Studying Federal District Courts Through Published Cases: A Research Note." JUSTICE SYSTEM JOURNAL 15:782-800.

Rowland, C.K. Robert A. Carp, Ronald A Stidham. 1984. "Judges' Policy Choices and the Value Basis of Judicial Appointments: A Comparison of Support for Criminal Defendants among Nixon, Johnson, and Kennedy Appointees to the Federal District Courts." JOURNAL OF POLITICS 46:886-902.

Segal, Jeffrey and Harold Spaeth. 1993. THE SUPREME COURT AND THE ATTITUDINAL MODEL. Cambridge: University Press.

Siegelman, Peter, and John J. Donohue III. 1990. "Studying the Iceberg from Its Tip: A Comparison of Published and Unpublished Employment Discrimination Cases." LAW AND SOCIETY REVIEW 24:1133-70.

Songer, Donald R., Jeffrey Segal, Charles M. Cameron. 1994. "The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court-Circuit Interactions." American Journal of Political Science 38:673-96.

Slotnick, Elliot E. 1979. "The U.S. Circuit Nominating Commission." Law and Politics Quarterly 1:465-96

Slotnick, Elliot E. 1984; "Judicial Selection Systems and Nomination Outcomes: Does the Process Make a Difference?" AMERICAN POLITICS QUARTERLY 12:225-40.

Songer, Donald R. 1988. Nonpublication in the United States District Courts: Official Criteria Versus Inferences from Appellate Review. JOURNAL OF POLITICS 50: 212-213.