FORUM

Why in the modern era has the lower court appointment process become so politicized? In my forthcoming book, Scoring Points: Politicians, Activists and the Lower Court Appointment Process, I tackle this thorny question from a new direction: the party system. Because political parties have controlled the lower federal court appointment process at least since the Jacksonian period, it is essential, if we are to fully understand why the appointment process has broken down in recent years, to focus on changes in the party system. My research demonstrates that a critical transformation in the traditional mass party system in the 1960s is, in fact, the very core explanation as to why the judicial appointment process has become so politicized.

I start from the premise that politicians have always been, and continue to be, maximizers of self-interest: above all else, politicians want to be re-elected. Therefore, politicians must cater to the political activists who are responsible for mobilizing voters. To ignore the activists’ demands is to risk losing the next election. To this end, presidents and senators have learned to exploit lower federal court judgeships to satisfy the demands of key activists. This much at least was as true in the early 19th century as it is today.

When, from the Jacksonian era through the 1960s, the mass party system was in place, political activists were singularly interested in acquiring material benefits in exchange for votes. Activists helped candidates get elected so that they could control lucrative contracts and jobs. Lower court judgeships were thus used to satisfy the patronage needs of the local party bosses. Political activists, working with home state senators, bestowed judgeships upon lawyers who had helped the party. Critically, local political activists cared nothing about a candidate’s ideology or policy preferences.

With the advent of the modern party system in 1968 and continuing to the present, old-time party bosses have faded away from the picture. Instead, we see the advent of a new breed of political activists who are not technically beholden to one of the political parties. In particular, two new types of political activists have taken up the party boss’ role of mobilizing voters: campaign activists (those associated with a specific candidate) and issue activists (those associated with an interest group). These activists, in stark contrast to the former party bosses, are interested solely in achieving policy goals through the election of their preferred candidates. They care little about patronage if it means compromising their policy goals. Lower court judgeships as patronage no longer make sense.

The change does not mean, however, that lower court judgeships have ceased being exploited as a means to satisfy the demands of political activists. Indeed, because the federal courts became much more amenable to adjudicating policy-oriented claims of underprivileged groups in society at approximately the same time as the mass party system began breaking down, politicians saw an opportunity to continue exploiting their power over nominating and confirming judges in a variety of ways designed to satisfy the policy goals of the new breed of political activists. Critically, judgeships continue to have a most definite connection to the electoral process: mobilizing elites, who then mobilize the masses. I term these various strategies “elite mobilization” strategies.

At the beginning of the modern political era, in the 1960s and 70s, the first two elite mobilization strategies emerged: the president’s use of ideological litmus tests in the selection of lower court judges and the president’s use of affirmative action in the selection of lower court judges. While conservative activists associated with Nixon and the Republican Party wanted judges who would cut back on the broad constitutional protections accorded minorities and criminal defendants during the Warren Court era, liberal activists associated with Carter and the Democratic Party wanted progressive judges, as well as more women and minorities, on the federal bench. Both presidents were happy to oblige.

During Reagan’s second term in office, a third elite mobilization strategy emerged when liberal activists successfully pressed Democratic senators to use any available procedural tactics to block the confirmation of Reagan’s most conservative appointees. Thus, policy considerations infused both the lower court judicial selection process as well as the confirmation process. And so, beginning with the judges appointed by Nixon, for the very first time in our nation’s history, distinct differences in decision-making behavior of courts of appeals judges appeared, based on the party of the appointing president. These patterns persist today.

My own analysis of judicial decision-making behavior demonstrates that, beginning with Nixon appointees, courts of appeals judges have acted in conformance with the policy demands of their parties’ respective activists, and exhibited ideological voting patterns in highly political cases. Chosen specifically because of their support for the policy agenda of political activists affiliated with the president, modern day judges deliver precisely what the activists are looking for in a judge. In contrast, when patronage concerns dominated the judicial selection process, there was no discernable difference in the decision-making behavior of courts of appeals judges appointed by Republican or Democratic presidents (from Harding through Johnson). In short, patrons did not affiliate with a party for policy purposes; they were not chosen by the president to further a policy agenda; and their Senate confirmation was not deemed a policy vote. The voting behavior of patrons once they took the bench confirms that these lower court judges were not promoting an ideological agenda.

Moreover, in the past two decades, partisan cleavages in judicial voting behavior have grown much deeper. This is not surprising, given that the policy positions of the two major parties and their activists have become increasingly polarized over time. With every change of party in the Whitehouse since the Reagan administration, political warfare over courts of appeals judgeships has escalated as key activists have become more vocal in their demands for the “right” kind of judges on the bench, and politicians’ use of elite mobilization tactics has become more frequent and contentious in an effort to accommodate their party’s activists.

How do we escape this vicious cycle? Many observers, placing the blame on the Senate, suggest changing the institutional rules governing the confirmation process. Other observers take presidents to task (Democrat or Republican) and challenge them to make more moderate choices for the bench in the spirit of bipartisanship. A different solution is to re-examine whether the lower federal courts are actually capable of effectuating social policy in our political system.

Many scholars of judicial politics rightly question the efficacy of courts to carry out social policy. These scholars observe that, beginning in the 1950s and 60s, activists began turning to the federal courts to achieve social policy. In turn, the courts began moving away from their traditional function of adjudicating private disputes between two individuals and taking on a broad range of cases that sought to establish new rights and obtain unconventional forms of relief. Rather than seeing this historic transformation as a positive development, most political scientists who have examined the issue argue that the federal courts must tread carefully because the judiciary risks institutional legitimacy by overstepping its authority (lacking the “purse and the sword”). Gerald Rosenberg’s argument goes even further. He believes that the greatest cost of this change in the American political landscape is the fact that the courts confer a “hollow hope” upon interest groups and activists—a false hope that the federal courts, rather than the other branches of government, are key to obtaining their policy goals:

U.S. courts can almost never be effective producers of significant social reform. At best, they can second the social reform acts of the other branches of government. Problems that are unsolvable in the political context can rarely be solved by courts . . . . Turning to courts to produce significant social reform substitutes the myth of America for its reality. It credits courts and judicial decisions with a power that they do not have.

Though Rosenberg’s thesis first appeared more than ten years ago, interviews with leading activists involved in judicial appointment politics today confirm that the same beliefs persist. Because activists continue to see the courts as integral to achieving policy outcomes, investing in the judicial appointment process makes sense. Yet, if Rosenberg and others who share his skepticism about the ability of courts to implement social policy are right, expending precious resources on the appointment process is irrational.

Were activists to come around to Rosenberg’s way of thinking, they would be less inclined to make the same demands on politicians about who should sit on the federal bench. It follows that absent such demands, the lower court appointment process would not be a pivotal battleground on which partisan disputes are fought. Rather, judges could be chosen based on their qualifications and not their political pedigree.

April 15, 2004

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