McFeeley, Neil D.

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BOOK REVIEWSPOLICYMAKING AND POLITICS IN THE FEDERAL DISTRICT COURTS,Robert Carp and C. K. Rowland. University of Telm:sseePress, Knoxville, Tenn., 1983. pp. 203. $17.95.It is intuitively obvious to many that the policy decisions of federaldistrict judges are influenced by their party affiliation, their geographi-cal region, and the president who appointed them. Little empirical evi-dence of this proposition has been developed, although many legalscholars and political scientists have studied the federal appellatecourts. Political scientists Carp and Rowland have supplied a verythorough study of the policymaking propensities of the federal trialcourts.The authors argue that federal district judges are increasingly in-volved in a discretionary policymaking role as their dockets expand.Between 1960 and 1980, the number of civil cases filed in federal courtsincreased more than 300 percent.'The emergence of new legal questions for which no precise appellateguidelines exist gives the jurists more leeway to shape or manipulatespecific policy outcomes through application and interpretation ofgeneral standards and to interject into their decisions their own val-ues and extralegal cues from the larger political environment. 2There are two reasons that no proof of this relationship between judi-cial characteristics and policy outcome at the district court level hasemerged previously; the first is a conceptual problem and the second isa quantitative one. The conceptual problem, the fact that trial courtjudges are limited in their opportunity for policymaking by their posi-tion in the judicial hierarchy,3 is overcome by the authors's recognitionthat when the law is clear and the appellate courts, particularly theSupreme Court, are cohesive and thus able to promulgate clear guide-lines for the trial courts, there is little lower-court discretion and thusscant opportunity for extralegal cues to affect decisionmaking. Butwhen precedent is imprecise and the Supreme Court is either inconsis-tent or ambiguous, the effects of extralegal cues are heightened as dis-1. R. CARP & C. ROWLAND, POLICYMAKING AND POLITICS IN THE FEDERAL DISTRICTCOURTS 4 (1983).2. Id3. Id at 7-11.DUKE LAW JOUR4Ltrict courts engage in policymaking. The authors argue that the lattersituation is apparent in the Burger Court era with its unstable ideologi-cal majority.4 The quantitative problem, the inability to compare twoor more judges's votes on a single case as in a collegial court, is largelyovercome by a comparison of thousands of individual district court de-cisions on similar topics.The study is grounded on a massive data base of 27, 772 districtcourt opinions issued by nearly a thousand judges in the forty-four yearperiod between 1933 and 1977. 5 Carp and Rowland analyzed eachcase to decide whether the decision was "liberal" or "conservative"within certain substantive classifications, such as criminal justice, civilrights and liberties, or governmental regulation. 6 They also collecteddata on the location and the background of the judge who rendered thedecision in order to determine which factors correlated with more lib-eral or more conservative decisionmaking.7 The authors do not fallprey to the trap of suggesting that all judicial decisionmaking is basedon political or personal preferences; they recognize that evidence andcontrolling precedent determine the outcome of most cases. But theyargue that the traditional legal model is of little use in explaining casesin emerging areas of the law, where evidence conflicts, or where prece-dents are unclear. In such cases, they argue, extralegal factors comeinto play.8 The authors suggest that some areas of law, such as patent,admiralty, or land condemnation, do not have a clear underlying lib-eral-conservative dimension and thus are excluded from the analysis.9The analysis reaches several conclusions. For example, Demo-cratic judges are more "liberal" than their Republican counterparts inalmost every substantive category, especially in the 1969-1977 BurgerCourt era. 10 This finding, however, is overshadowed by the signifi-cance of the appointing president for judicial voting. The study findsthat a president may have a tremendous impact on the judiciary, andthus on judicial policymaking, if the president is committed to ap-pointing judges who share his policy views and provides clear ideologi-4. Id at 8-11.5. Id at 14-23.6. The authors developed five general categories with several subcategories of case content.The five are criminal justice (including habeas corpus petitions, evidentiary motions and criminalconvictions); government regulation of the economy (including commercial, environmental, andeconomic regulations); support for labor, class discrimination (including voting rights, women'srights and minority discrimination cases); and first amendment freedoms (including cases on free-dom of expression and religion). Id at 19-23.7. Id at 14-15.8. Id at 2-7.9. Id at 14.10. Id at 32-50.[Vol. 1984:621BOOK REVIEWScal criteria to implement his desire. Both Lyndon Johnson andRichard Nixon were committed to selecting judges who shared theirviews and both were successful. Carp and Rowland's data show thatJohnson appointees are the most liberal on all issues and that Nixon'sare consistently among the most conservative. On the other hand, theappointees of Kennedy, a president who cared little about the views ofjudges, and Eisenhower, who was not concerned with ideological puritybut rather with "competence," reflect no consistent policymakingpattern.IThe book also studies the impact of geographic factors on judicialdecisions and concludes that location, and to a lesser extent, the degreeof urbanization of the community where the judge sits, do affect votingpatterns. 12 Fitting all the variables together, the study finds that twovariables-the judge's state and the appointing president-and the in-teraction between those two variables are the most important sourcesfor discriminating between liberal and conservative policy decisions.' 3Although the empirical conclusions reached are generally well-supported, there are some conceptual weaknesses in the study. First,the basis for the analysis is the liberal-conservative dichotomy of the28,000 cases; the authors fail to explain clearly how the dichotomiza-tion was accomplished. Did one individual read all 28,000 cases toclassify their outcomes? This problem is related to another that theauthors acknowledge,' 4 but fail to recognize as significant: the fact thatthe dependent variable-the liberal versus conservative dichotomiza-tion of the judge's final vote-is simplistic. Attorneys recognize thatrulings on preliminary motions, evidentiary questions, and other "mi-nor" issues during the litigation may be as or more important than thefinal decision since those earlier rulings have shaped the issues. A fur-ther problem is the authors's claim that during certain Supreme Courteras, there were more precedential ambiguities and shifting majoritiesthat allowed more discretionary policymaking by lower courts. 15 Butthis does not necessarily hold true for every substantive area; even dur-ing an era of ideological uncertainty the Court may have provided veryclear guidelines to the lower courts on a certain area of law, for exam-ple, the "ambiguous" Burger Court's clear directives on obscenity law.In addition, the method of representing the rural-urban character ofthe court-the number of judges assigned-is somewhat problematical.11. See generally id at 51-83.12. See generally id at 84-144.13. Id at 160-64. See generally id 145-71.14. Id at 16-17.15. Id at 10-11.Vol. 1984:6211DUKE LAW JOURNVALAnother criticism concerns the rather dated sources which the authorsrely on in many instances. Most of the sources on rural-urban differ-ences, for example, are decades old.' 6 These problems are rather mi-nor, however, and the overall analysis is valid.Policymaking and Politics in the Federal District Courts will be lessuseful to practicing attorneys than to political scientists and scholars oflegal behavior. The latter groups are provided with a sophisticated em-pirical study of a relatively unexplored area; the analysis of the impactof the appointing president is especially important. Carp and Rowlandhave made a significant contribution to the judicial behavior literature;their book is an important study of the lower federal courts.Neil D. McFeeleyDEATH PENALTIES, Raoul Berger. Harvard University Press,Cambridge, Mass., 1982. pp. 242. $17.50.In Death Penalties, ' noted constitutional scholar Raoul Berger crit-ically analyzes the "abolitionist" thesis that capital punishment is"cruel and unusual" and therefore violative of the eighth and four-teenth amendments to the federal Constitution. Berger also criticizesthe Supreme Court for finding support in the eighth amendment forjudicial review of the proportionality of punishments to crimes. Beforeinquiring into the meaning of the "cruel and unusual punishments"clause, he decries the extension of the eighth amendment to the states,arguing that both the Supreme Court's selective incorporation doctrineand Justice Black's theory of en bloc incorporation are misguided.2 •Berger's view is that the due process clause of the fourteenth amend-ment-the vehicle of selective incorporation-is particularly ill-suitedto carry the eighth amendment over to the states because due process is"procedural," whereas punishments are creatures of substantive law.3Berger's analysis of the "cruel and unusual punishments" clausetakes as its point of departure the fact that capital punishment was notunderstood to be cruel and unusual per se in 1791, the year of the ratifi-16. See id at 118-25.1. R. BERGER, DEATH PENALTIES (1982).2. Id at 10-18.3. Id at 18-28.[Vol. 1984:621

Policymaking and Politics in the Federal District Courts, Robert Carp and C. K. Rowland

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Policymaking and Politics in the Federal District Courts, Robert Carp and C. K. Rowland

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