Head Counting on the U.S. Courts of Appeals
posted by Robert Ahdieh
Others have already commented on it (here and here), but I wanted to add my belated thoughts on the Wall Street Journal opinion piece on judicial appointments by Steve Calabresi, of some weeks back. In it, Calabresi outlines a true parade of horribles (including “the mass freeing of criminal defendants”) that might befall on the country, if Barack Obama were to win the presidency and make significant appointments to the U.S. Courts of Appeals. (He was writing the week before the election.)
What struck me more than Steve’s enumeration of dangers and threats, however, was an earlier comment in the piece.
After offering an audit of the membership on the D.C. Circuit by appointing president, and suggesting the likelihood that Obama will make a substantial number of appointments to that court, he states:
“The net result is that the legal left will once again have a majority on the nation’s most important regulatory court of appeals.”
And he continues, turning to the balance of the courts of appeals:
“The balance will shift as well on almost all of the 12 other federal appeals courts. . . . Circuit majorities are likely at stake in this presidential election for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts of Appeals.”
I think my legal realist credentials are as good as the next guy, but what are we to make of such talk of “majorities” on the courts of appeals – as measured by the imprecise heuristic of appointing president, no less? Do federal court of appeals judges caucus by party – or even political preferences, for that matter? If so, who is the Democratic whip on the Second Circuit? On the Ninth!?!
I share much of the general sense of doubt about the possibility of judicial dispassion and neutrality, and about the notion of judges as simply “umpires.” I suspect we go much too far, however, in conceptualizing the collective decision-making of the courts of appeals – or even the Supreme Court, I suspect – in terms of voting majorities of one party versus the other.
Such an approach is not merely inaccurate, however, but also harmful to public perception of the courts – and of the law generally. Perhaps especially because it perpetuates itself.
If Steve can tell a story of threatened Democratic majorities on nine of the thirteen courts of appeals, thus, The New York Times can respond in kind, as it did:
“Republican-appointed judges, most of them conservatives, . . . control 10 of the 13 circuits, while judges appointed by Democrats have a dwindling majority on just one circuit.”
Not too sound too schoolmarm-y about it, but we really shouldn’t be talking this way.
November 21, 2008 at 7:33 am
Posted in: Articles and Books
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Responses (2)
Paul Collins - November 21, 2008 at 10:22 am
Calabresi’s discussion also misses the importance of senatorial courtesy in the appointment of courts of appeals judges. While this is most commonly associated with the federal district courts, the fact remains that home state senators who are members of the president’s party have a big influence on the appointment of courts of appeals judges too.
The significance of senatorial courtesy has had a big impact on quantitative studies of courts of appeals decision making. Rather than simply use the political party of the president who appointed a courts of appeals judge as a proxy for that judge’s ideology, the gold standard has become the Giles, Hettinger, and Peppers scores, which account for the dynamics of the federal judicial selection process relating to senatorial courtesy.
See: Giles, Micheal W., Virginia A. Hettinger, and Todd Peppers. 2001. “Picking Federal Judges: A Note on Policy and Partisan Selection Agendas.” Political Research Quarterly 54(3): 623-641.
PoorForm - November 21, 2008 at 1:02 pm
At least the NYT has the (weak) excuse that they’re (presumably) not lawyers who should know better….
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