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

Abstract

The news that Federal Judges, which I co-authored with Virginia Hettinger and Todd Peppers, was one of the frequently cited articles published in Political Research Quarterly came as a surprise. While we, of course, thought the article made a significant contribution and were pleased that the reviewers and editor agreed, it seemed an unlikely prospect to win a competition for citations. After all, the article appeared under the designation of a research note, and the focus was on an issue central to a subfield but not to the discipline at large. How then can the scholarly attention given to Federal Judges be explained? The impact of the article, I think, can be attributed in some part to external political and intellectual forces. While political science research sometimes seems impervious to current political debates, the controversy surrounding judicial appointments in the Bush administration increased scholarly interest in judicial selection. Likewise, the publication of Sheldon Goldman's (1997) seminal Picking Federal Judges: Lower Court Selection from Roosevelt through Reagan contributed to increased scholarly attention to selection of lower federal court judges. The citation count of our article undoubtedly benefited from the resulting increase in publications to which it was relevant However, the benefit of a rising tide of scholarly interest in judicial selection is not sufficient to place our article among the select category of most cited. As the analysis below indicates, credit for that status appears to be attributable largely to the methodological contribution of the article. In the following essay, I will describe that contribution and survey the reactions of citing authors. The recognition that lower federal courts are important makers generated two important and vigorous research programs among judicial scholars: One focused on the process of selecting judges and one focused on the factors influencing their decisions. While these research programs were individually fruitful, few studies prior to our Federal Judges had attempted to explore the linkage between the politics and process of selection and the decisions of judges (exceptions were Rowland and Carp 1996; Rowland, Carp, and Stidham 1984; Songer 1982). The principal hindrance to that inquiry was the reliance of scholars on the party of the appointing president as the measure of judicial preferences for lower federal court judges. The party of the appointing president has consistently been linked to judicial behavior, with judges appointed by Democratic presidents more liberal in their decision making than those appointed by Republican presidents. While this result supports the inference that the party that controls the presidency matters in the selection process, it does not tell us how it matters. The problem is one of behavioral equivalency. All three of the causal mechanisms elaborated in Goldman's (1997) selection agendas could result in the judges appointed by Democratic presidents being more liberal than those appointed by Republican presidents. First, Democratic presidents are more liberal than their Republican counterparts, and each may nominate candidates with preferences close to their own (Goldman's policy agenda). Second, Democratic political activists are more liberal than Republican activists, and presidents may simply reward activist members of their party with judicial posts (Goldman's partisan agenda). Third, presidents may reward their friends with judicial appointments (Goldman's personal agenda), and with few exceptions, those friends will also be party activists. Thus, employing the party of the appointing president to measure judicial preferences presents a roadblock to assessing these alternative selection strategies.1 In addition to the problem of behavioral equivalence, the party of the appointing president is, at best, a poor proxy for judicial preferences. …