ing certain characteristic legal issues with respect to which it is most plausible that ideology will influence judicial decisions.33 These studies, however, have weaknesses similar to those of Frank. First, they ignore except in an extremely narrow sense forces that lead certain cases to be brought to judgment.34 Second, they tend to measure the "law" of a given period or the influence of the judiciary by the content of current decisions.35 By neglecting those decisions that fail to generate continuing litigation, which are likely to comprise the predominating component of legal rules in force, these studies attribute excessive influence to measurements of the background of the current judiciary. Various legal scholars have responded to Frank's characterization of judicial decisionmaking by emphasizing the limitations on judicial discretion imposed by the common law process. Their analysis is similar in many respects to the model in this paper.36 A prominent example is Edward H. Levi's An Introduction to Legal Reasoning.37 Levi explains that the common law process develops legal rules from reasoning by example. For a given decision a judge surveys the set of rules of law announced in earlier similar cases and applies one of the rules to decide the case at hand. The law changes as the similarities perceived between current cases and certain former cases increase. A new legal category or similarity can be proposed by one of the litigants and if the idea is accepted it will displace an earlier legal

The Common Law Process and the Selection of Efficient Rules

The importance of lower federal courts in the policymaking process has stimulated extensive research programs focused on the process of selecting the judges of these courts and the factors influencing their decisions. The present study employs judicial decisionmaking in the U.S. Courts of Appeals as a window through which to reexamine the politics of selection to the lower courts. It differs from previous studies of selection in three ways. First, it takes advantage of recent innovations in measurement to go beyond reliance on political party as a measure of the preferences of actors in the selection process. Second, employing these new measures it examines the relative effects of the operation of policy and partisan agendas in the selection process. Third, a more complex model of selection is assessed than in most previous studies-one that expressly examines the role of senators and senatorial preferences in the selection process. The results clearly suggest that the politics of selection differ dramatic...

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Picking Federal Judges: A Note on Policy and Partisan Selection Agendas:

We examine Supreme Court-circuit court interactions from a principal-agent perspective, employing a fact pattern analysis to determine the extent to which circuit courts follow their own policy preferences versus the extent that they follow the policy dictates of the Supreme Court. We then examine whether monitoring by the Supreme Court can affect those interactions. We find that the courts of appeals are highly responsive to the changing search and seizure policies of the Supreme Court. Nevertheless, the strong independent effect of the ideologies of the judges gives evidence that judges do find opportunities to "shirk" to satisfy their own policy interests. We also find strong evidence that litigants play an active role in influencing monitoring by the Supreme Court.

http://www.jstor.org/stable/pdfplus/2111602.pdf

The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court-Circuit Court Interactions

This study extends recent inquiries of contextual effects in sentencing by jointly examining the influence of judge and courtroom social contexts. It combines two recent years of individual sentencing data from the Pennsylvania Commission on Sentencing (PCS) with data on judicial background characteristics and county court social contexts. Three-level hierarchical models are estimated to investigate the influence of judge and county contexts on individual variations in sentencing. Results indicate that nontrivial sentencing variations are associated with both individual judge characteristics and county court contexts. Judicial background factors also condition the influence of individual offender characteristics in important ways. These and other findings are discussed in relation to contemporary theoretical perspectives on courtroom decision making that highlight the importance of both judge and court contexts in sentencing. The study concludes with suggestions for future research on contextual disparities in criminal sentencing.

https://ccjs.umd.edu/sites/ccjs.umd.edu/files/pubs/Johnson2006.pdf

The multilevel context of criminal sentencing: integrating judge- and county-level influences *

Through their power to sentence, trial judges exercise enormous authority in the criminal justice system. In 39 American states, these judges stand periodically for reelection. Do elections degrade their impartiality? We develop a dynamic theory of sentencing and electoral control. Judges discount the future value of retaining office relative to implementing preferred sentences. Voters are largely uninformed about judicial behavior, so even the outcome of a single publicized case can be decisive in their evaluations. Further, voters are more likely to perceive instances of underpunishment than overpunishment. Our theory predicts that elected judges will consequently become more punitive as standing for reelection approaches. Using sentencing data from 22,095 Pennsylvania criminal cases in the 1990s, we find strong evidence for this effect. Additional tests confirm the validity of our theory over alternatives. For the cases we examine, we attribute at least 1,818 to 2,705 years of incarceration to the electoral dynamic.

Accountability and Coercion: Is Justice Blind When It Runs for Office?

In an earlier study of voting behavior of U.S. appeals courts judges, attitudinal patterns were investigated along with an analysis of the relationship of judges' backgrounds to their decisions. In this revisit, the earlier findings were treated as hypotheses and tested with a new case population covering a subsequent and longer time period. In all, 2,115 cases decided nonunanimously were coded on one or more issues. Most cases could be classified under ten broad issue categories which were then utilized for most of the analyses. Although the research design was similar to that of the earlier study, a wider variety of methods was employed including nonparametric and parametric intercorrelations of voting behavior on the ten issues and stepwise multiple regression and partial correla-tion analyses of seven background variables and their relationships to voting behavior on the issues. The principal findings were similar to those found earlier but it was possible to map voting behavior with some-what more precision and to uncover some unexpected relationships such as those concerning the potency of the age variable particularly for voting on political liberalism issues.

Voting Behavior on the United States Courts of Appeals Revisited

A president's least-noticed important legacy is his appointment of judges to the lower federal bench. How are these judges chosen? What happens behind the scenes? How important are senators, party organizations, the American Bar Association, and others in the selection process? In this landmark book, a leading authority on lower federal court judicial selections tells the riveting story of how nine presidents over a period of fifty-six years have chosen federal judges. Sheldon Goldman has interviewed participants, and he has mined published and unpublished government documents and archives, along with memos, letters, and other documents in the papers of every president from Franklin Roosevelt through Ronald Reagan, to bring to life the judicial selection process. His book is filled with richly drawn and dramatic accounts of each president's use of judicial appointments to further policy, partisan, and personal agendas. Goldman analyzes political and social changes that have occurred over the years and the impact of those changes on the profile of those selected for the bench. His statistical portraits of the backgrounds of each administration's appointees point up the changing face of the federal judiciary. The author also documents the responses of each presidential administration to calls for gender and race diversification of the bench. Casting bright light on the little-known details of judicial selection politics, Picking Federal Judges is sure to become the definitive book on this subject.

Picking Federal Judges: Lower Court Selection from Roosevelt through Reagan

Voting behavior of public decision-makers has been of central concern for political scientists. For example, studies of legislatures (notably of Congress) have investigated such research problems as: (1) the extent to which voting on one issue is related to voting on other issues; (2) the potency of party affiliation as an organizer of attitudes and a predictor of voting behavior; and (3) the relationship of demographic characteristics to voting behavior. These and related concerns have more recently occupied the attention of students of the judiciary whose focus has primarily been on the United States Supreme Court. State courts of last resort have also provided a testing ground primarily for problems (2) and (3). However, the United States courts of appeals, second only to the Supreme Court in judicial importance, have been largely neglected. This paper considers the above research problems with reference to the voting behavior on all eleven courts of appeals from July 1, 1961 through June 30, 1964.

Sheldon Goldman

Papers

Voting Behavior on the United States Courts of Appeals Revisited

Picking Federal Judges: Lower Court Selection from Roosevelt through Reagan

Voting Behavior on the United States Courts of Appeals, 1961-1964

The Federal courts as a political system

Clinton's first term judiciary: Many bridges to cross