Taking It to the Next Level: The Elevation of District Court Judges to the U.S. Courts of Appeals

We address an important aspect of judicial careers: the elevation of judges from the U.S. District Courts to the Courts of Appeals. We argue that the likelihood of a judge being elevated is a function of informational cues and signals regarding the nature of the judge and the judge's compatibility with presidential preferences. We also expect norms involving the intersection between geography and Senate politics to affect a judge's elevation chances. Using data on district court judges appointed between 1946 and 1995, we find that the likelihood of a judge being elevated is a function of the judge's ideological compatibility with the president, the judge's previous ABA rating, and Senate norms involving state "ownership" of appeals court seats. Blunt indicators of policy preferences trump direct signals when presidents decide whom to elevate, leaving judges little control over their career prospects and thus less incentive to slant their decisions in the direction of the president's preferences.     

Judicial Selection: Politics,Biases, and Constituency Demands

The determinants of recent U.S. districtcourt judges and appellate court judgesselection have been subject of much debate,but little systematic evidence has beenpresented to substantiate claims regardingdiscrimination against particular groups ofjudicial nominees, nor regarding the lengthof the appointment process. We study boththe length of the nominations process, andthe likelihood of confirmation andemphasize the role of Senatorial seniorityand agenda control in the confirmationsprocess. We find that Senators with agendacontrol have a positive effect on the speedand likelihood of confirmation and thatnominees from states with comparativelysenior Senators receive expedited treatmentrelative to other nominees. Althoughpolitics matter in the confirmationprocess, Senators are responsive to aperceived ``shortage'' of judges, since theyfill seats faster when a relatively largenumber of court seats are vacant. Nomineeswith higher personal qualifications arealso more likely to experience success inconfirmations. We found no evidence ofgender or race discrimination on the partof the Senate.     

The vulnerable populist right parties: No economic realignment fuelling their electoral success

Abstract.  The two occupational groups most likely to vote for populist right parties in Western Europe in the 1990s also disagree the most over issues relating to the economic dimension of politics. The two groups were: blue-collar workers – who support extensive state intervention in the economy – and owners of small businesses – who are against such state intervention. Proponents of economic realignment theories have held that both groups voted for the populist right because their economic preferences became aligned in recent decades. This article analyzes more detailed comparative data than has previously been available in the two cases held to be most propitious for the realignment hypotheses – France and Denmark – and finds strong evidence against them. The key mechanism for bringing together voters who disagree on state intervention in the economy is the populist right's appeal on issues cross-cutting the economic dimension, and these voters' willingness to grant such issues pre-eminence over economic ones. As a result, it is argued, populist right parties in Western Europe are limited by or vulnerable to the salience of the economic dimension.     

Supreme Court Appointments as a Move-the-Median Game

A three-stage model isolates conditions under which an executive appointment to a collective choice body, such as a court or a regulatory agency, has an immediate bearing on policy. The model strikes a balance between previous formal models that predict either excessive gridlock or excessive policy responsiveness as a consequence of the politics of appointments. I test the model using approximately four decades of data on U.S. Supreme Court appointments. Two hypotheses summarize the unique predictions of the model and are strongly corroborated. A third, less distinctive hypothesis about strategic judicial retirements is weakly supported .     

Courting the President: How Circuit Court Judges Alter Their Behavior for Promotion to the Supreme Court

We examine whether circuit court judges sacrifice policy purity for career goals. We compare the behavior of contender judges–those most likely to be elevated to the Supreme Court–during vacancy periods with their behavior outside vacancy periods. We also examine the behavior of noncontender judges during those same times. The data show that during vacancy periods, contender judges are more likely to vote consistently with the president's preferences, to rule in favor of the United States, and to write dissenting opinions. Noncontender judges fail to evidence such behavior. These findings provide empirical support for the argument that federal judges adapt their behavior to specific audiences, and provide new avenues for research into judges' goals and the role of audiences in judicial decision making.     

State High Courts, State Constitutions, and Individual Rights Litigation Since 1980: A Judicial Survey

In 1985, state courts of last resort issued more decisions thanin any year since 1950 in which they extended rights protectionsto individuals beyond those recognized by the U.S. Supreme Courtby basing rights protections solely or independently upon stateconstitutional grounds. A survey of state high court judgesand justices reported here indicates that there has been a nationwideincrease in the number of individual rights cases litigatedunder state constitutions since 1980. Significant-to-moderateincreases, however, were more likely to be reported by justicesfrom the Northeast and West, from states having a moralisticpolitical culture, and from courts whose members are appointedby the governor and/or legislature. State constitutional rightsclaims are more likely to be raised in criminal than noncriminalcases, though in both types of cases and in most states, stateconstitutional rights claims are raised less frequently thanfederal constitutional rights claims. Majorities of judges andjustices favor the ideas of teaching state constitutional lawin law schools and of testing for knowledge of state constitutionallaw on bar examinations.     

Punishing environmental crimes: An empirical study from lower courts to the court of appeal

We analyze judicial policy lines concerning the punishment of environmental crime using a unique European dataset of individual criminal cases, including case‐specific information on offenses and offenders. We investigate policy choices made by lower criminal courts, as well as their follow‐up by the relevant court of appeal. The sanctioning policy of the courts has proven to be varied as well as consistent. Judges carefully balance effective and suspended penalties, most often using them cumulatively, but in specific cases opting to use them as substitutes. Overall, both judges in lower and appeal courts balance environmental law and classic criminal law and aim at protecting individuals and their possessions as well as the environment.     

Getting Their Way: Bias and Deference to Trial Courts

How much do trial judges influence the law in the United States? I analyze a model of adjudication by a trial judge who engages in fact finding before deciding a case, but whose decision may be reversed. The model makes three broad points. First, it provides an informational rationale for ex post deference to biased trial judges that does not require an ex ante commitment by an appellate court to a standard of review. Second, it shows how procedural discretion can bring biased trial judges' rulings closer to appellate doctrine despite enabling trial judges to “get their way” more often. Third, de facto law as represented by trial judges' case‐by‐case adjudication will differ substantially from de jure law. As long as there are not too many extremist trial judges, de facto law will reflect the predispositions of trial judges, not legal doctrine.     

State Public Opinion, the Death Penalty, and the Practice of Electing Judges

Do state supreme courts act impartially or are they swayed by public opinion? Do judicial elections influence judge behavior? To date these questions have received little direct attention due to the absence of comparable public opinion data in states and obstacles to collecting data necessary for comprehensive analysis of state supreme court outcomes. Advances in measurement, data archiving, and methodology now allow for consideration of the link between public opinion and judicial outcomes in the American states. The analysis presented considers public opinion's influence on the composition of courts (indirect effects) and its influence on judge votes in capital punishment cases (direct effects). In elective state supreme courts, public support for capital punishment influences the ideological composition of those courts and judge willingness to uphold death sentences. Notably, public support for capital punishment has no measurable effect on nonelective state supreme courts. On the highly salient issue of the death penalty, mass opinion and the institution of electing judges systematically influence court composition and judge behavior.     

Identifying Judicial Empathy: Does Having Daughters Cause Judges to Rule for Women's Issues?

In this article, we consider whether personal relationships can affect the way that judges decide cases. To do so, we leverage the natural experiment of a child's gender to identify the effect of having daughters on the votes of judges. Using new data on the family lives of U.S. Courts of Appeals judges, we find that, conditional on the number of children a judge has, judges with daughters consistently vote in a more feminist fashion on gender issues than judges who have only sons. This result survives a number of robustness tests and appears to be driven primarily by Republican judges. More broadly, this result demonstrates that personal experiences influence how judges make decisions, and this is the first article to show that empathy may indeed be a component in how judges decide cases.     

Can text messages reduce incarceration in rural and vulnerable populations?

Reducing failures to appear (FTA) in court is a top priority for criminal justice practitioners and advocates. However, existing work on reducing FTAs through text message reminders focuses on large urban jurisdictions and defendants who are housed. Using a field study in Shasta County, California, we evaluate whether text message outreach can increase court appearances for housed and unhoused populations. We find housed defendants randomly assigned to the treatment group were 10% less likely to miss their next scheduled court date than defendants in the control group. We find no statistical difference in the FTA rate of unhoused individuals assigned to treatment or control groups, and cannot rule out large positive or negative effects. We find that improving the quality of contact information in court records could lead to large reductions in FTAs. Partnering with local social service providers may not, but more research is needed.     

Mobilizing Interest: The Effects of Money on Citizen Participation in State Supreme Court Elections

In this article, we investigate one highly significant aspect of the role of money in judicial elections: whether campaign spending increases citizen participation in the recruitment and retention of judges. Specifically, by using a two-stage modeling strategy that allows us to separate the effects of challengers from the effects of money, we assess whether relatively expensive campaigns improve the chances that citizens will vote in the 260 supreme court elections held from 1990 through 2004 in 18 states using partisan or nonpartisan elections to staff the high court bench. We find that increased spending significantly improves citizen participation in these races. Whether measured as the overall spending in each election or in per capita terms, greater spending facilitates voting. We conclude, contrary to conventional wisdom about the deleterious effects of money in judicial elections, that by stimulating mass participation and giving voters greater ownership in the outcomes of these races, expensive campaigns strengthen the critical linkage between citizens and the bench and enhance the quality of democracy.     

Federal court outcomes in asylum-related appeals 1980–1987: A highly ‘politicized’ process

Federal court outcomes (both district courts and courts of appeal) in asylum-related appeals during the period 1980–1987 are significantly related to three political variables: the political party affiliation of the President who appointed the judge or judges involved in an appeal, the nature of judicial constituencies, and the involvement of interest groups in the appeals. Court outcomes are not, on the other hand, significantly related to two contextual factors: geopgraphic region of the decisionmakers and the unemployment rate. The federal courts did not exhibit the bias of the immigration bureaucracy in favor of hostile-country aliens (aliens from communist, socialist, or leftist countries); nor did these courts favor aliens from European countries.     

Change over Tenure: Voting, Variance, and Decision Making on the U.S. Courts of Appeals

Existing scholarship on the voting behavior of U.S. Courts of Appeals judges finds that their decisions are best understood as a function of law, policy preferences, and factors relating to the institutional context of the circuit court. What previous studies have failed to consider, however, is that the ability to predict circuit judge decisions can vary in substantively important ways and that judges, in different stages of their careers, may behave distinctively. This article develops a theoretical framework which conceptualizes career stage to account for variability in voting by circuit judges and tests hypotheses by modeling the error variance in a vote choice model. The findings indicate that judges are more predictable in their voting during their early and late career stages. Case characteristics and institutional features of the circuit also affect voting consistency.     

Ideological Competition and Conflict in the Judicial Hierarchy

Circuit splits, or conflicting rules across multiple U.S. Courts of Appeals, have important policy implications and dramatic effects on Supreme Court case selection, yet we know little about the incentives ideological lower courts face when deciding whether to initiate conflict. This article develops a formal model of a judicial hierarchy where lower court judges are subject to review by a high court with distaste for unresolved conflict, termed “split-intolerance,” and with uncertain preferences over policy. Lower courts may compete by investing costly effort in legal quality to make their rules more attractive. In equilibrium, lower courts may initiate conflict even when the odds of success before the high court are remote. Surprisingly, lower courts grow more likely to create conflict as the high court's split-intolerance increases; however, split-intolerance can also incentivize greater lower court effort. I present qualitative evidence illustrating the model's explanatory power.     

Breaking up Is Hard to Do: The Dissolution of Judicial Supervision of Public Services

Public services in many states have been placed under federal court supervision. In our 1991 PAR article, we examined the implications of the federal judicial decisions in supervising the Kansas City Metropolitan School District for the "new triumviate" governing public services—public officials, legislators, and judges. In this article, we examine judicial decisions affecting the same school district a decade later to reveal the impact of judicial supervision on the school district and to discern the implications for policy termination. We find that, once begun, judicially mandated federal court supervision of public institutions is not readily terminated, even pursuant to the wishes of the United States Supreme Court.     

Judicial Self-Governance Index: Towards better understanding of the role of judges in governing the judiciary

The aim of this article is to introduce a novel view on how to evaluate the share of power held by judges in judicial governance. Its contribution to court administration and the regulation of judges is three-fold. First, it provides a novel empirically tested conceptualization of judicial governance that includes 60 competences grouped into eight dimensions (ranging from selection and education of judges to case allocation and publication of judicial decisions). Second, it proposes a new Judicial Self-Governance (JSG) Index that measures how much power domestic judges hold in these eight dimensions of judicial governance. Third, by applying the JSG Index to the longitudinal data for Germany, Italy, Czechia, and Slovakia this article demonstrates that the Judicial Council model is not the only institutional model of judicial governance leading to the empowerment of judges. This means that judges can hold many powers without the existence of judicial councils and even in the Ministry of Justice model.     

The Value of Vagueness: Delegation, Defiance, and Judicial Opinions

An established line of research demonstrates that vague judicial opinions are less likely to be implemented than clear opinions. Vague opinions thus present a puzzle. Why would judges craft opinions that risk noncompliance? We argue that the relationships between judges and other policy makers in separation‐of‐powers systems are central to understanding this puzzle. Opinion vagueness can reflect efforts to resolve core tradeoffs associated with judicial policymaking that bear some resemblance to standard accounts of political delegation. Vagueness offers judges the ability to manage their uncertainty over policy outcomes and to hide likely defiance from public view. At the same time, vagueness removes a central source of pressure for compliance that judges can place on other policy makers. Using a game‐theoretic model, we identify conditions under which judges use vagueness precisely as legislatures use statutory discretion. We also demonstrate conditions under which judges use vagueness in ways unanticipated by standard delegation accounts.     

Partisan stabilization policy and voter control

Abstract. Representative democracy is a principal-agent institution. Voter influence over macroeconomic policy should be noticeable during election years when the president (agent) and median voter (principal) disagree about goals. They might disagree due to the prospective benefit of choosing a policymaker who is more conservative than the voter. This conclusion is demonstrated analytically in a new Keynesian model of endogenous stabilization in which the president reacts quickly to lean against the macroeconomic wind. We support the principalagent characterization of voters and presidents in an endogenous policy model with regression estimates of growth rate targets, allowing for differences between Democrats and Republicans.     

Explaining Explanations: How Legislators Explain their Policy Positions and How Citizens React

Legislators claim that how they explain their votes matters as much as or more than the roll calls themselves. However, few studies have systematically examined legislators’ explanations and citizen attitudes in response to these explanations. We theorize that legislators strategically tailor explanations to constituents in order to compensate for policy choices that are incongruent with constituent preferences, and to reinforce policy choices that are congruent. We conduct a within‐subjects field experiment using U.S. senators as subjects to test this hypothesis. We then conduct a between‐subjects survey experiment of ordinary people to see how they react to the explanatory strategies used by senators in the field experiment. We find that most senators tailor their explanations to their audiences, and that these tailored explanations are effective at currying support—especially among people who disagree with the legislators’ roll‐call positions.