Chief judges: The limits of attitudinal theory and possible paradox of managerial judging

Vanderbilt Law Review

Volumn 61, Issue 1, 2008, Pages 1-61

  George, Tracey E ^a   Yoon, Albert H ^b  

^a VANDERBILT UNIVERSITY   (United States)

^b NORTHWESTERN UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 41449085929     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (299)

1. 539 U.S. 306 (2003) (upholding the University of Michigan Law School's method for considering race and ethnicity in its admissions policy, but striking down, in the related lawsuit, Gratz v. Bollinger, 539 U.S. 244 (2003), the specific affirmative action methodology used by the undergraduate admissions program).
2. Grutter v. Bollinger, 137 F. Supp. 2d 821, 872 (E.D. Mich. 2001) (holding, in an opinion by Judge Bernard A. Friedman, that the University of Michigan Law School's consideration of race in admissions violated the Equal Protection Clause of the 14th Amendment and Title VI of the Civil Rights Act).
3. The appeal was filed on April 2, 2001. Id., appeal docketed, No. 01-1447 (6th Cir. Apr. 2, 2001) [hereinafter Grutter Docket Sheet]. The Grutter Docket Sheet is publicly available. It does not reflect, however, certain internal activities of the court, such as circulation of petitions for votes, specific votes on those petitions, or the identity of judges other than the judge (or judges) who sign an order. The Sixth Circuit maintains a private docket that includes such additional information. This private docket sheet usually is not available to the public, but its content was described in a concurring opinion in the case.
4. See Grutter v. Bollinger, 288 F.3d 732, 752, 754 (6th Cir. 2002) (en banc) (Moore, J., concurring) (describing the "private docket" in the case).
5. While the Grutter Docket Sheet does not reflect the composition of the new panel, it does disclose decisions by the panel regarding minor matters that arose between the law school's filing of the notice of appeal and oral argument.
6. See, e.g., Grutter Docket Sheet, supra note 3, April 5, 2001 entry (noting the panel decision in Grutter v. Bollinger, 247 F.3d 631, 633 (6th Cir. 2001), a ruling by Martin, Daughtrey, and Moore on April 5, 2001, which granted the law school's request for a stay, pending appeal, of the district court's order enjoining the consideration of race in admissions).
7. See Grutter Docket Sheet, supra note 3, May 14, 2001 entry (showing petition for en banc hearing prior to submission of briefs).
8. Gratz v. Bollinger, 277 F.3d 803, 803 (6th Cir. 2001) (en banc) (granting en banc hearing by order dated October 19, 2001).
9. Grutter, 288 F.3d at 735 (upholding the law school's admissions policy by a ñve-to-four vote with Judges Daughtrey, Moore, Cole, and Clay joining Martin's opinion and Judges Boggs, Siler, Batchelder, and Gilman dissenting).
10. See id. at 810-14 (Boggs, J., dissenting) (discussing concerns relating to the alleged violations of internal procedures in granting this en banc review);
11. id. at 773 (Clay, J., concurring) (noting Judge Boggs's divulgence of internal information).
12. See id. at 810-14 (Boggs, J., dissenting) (alleging Martin violated then-Sixth Circuit Internal Operating Procedure Rule 34(b)(2), which provided that subsequent appeals would be returned to the original panel for a determination of "whether the second appeal should be submitted to it for decision, or assigned to a panel at random," and that when a district court judge sat on the original panel, the remaining two circuit judges were to decide whether to recall that district judge or to select another circuit judge at random).
13. The petition was filed with the court on May 14, 2001. Grutter Docket Sheet, supra note 3, May 14, 2001 entry. Judge Alan Norris, a Ronald Reagan appointee, took senior status on July 1, 2001, and Judge Richard Suhrheinrich, a George H.W. Bush appointee, took senior status on August 15, 2001.
14. See Federal Judicial Center, Biographical Directory of Federal Judges, http://www.fjc.gov/public/home.nsf/hisj (for Judge Norris, search "Norris, Alan," then follow link; for Judge Suhrheinrich, search "Suhrheinrich, Richard," then follow link) (last visited Dec. 26, 2007).
15. The Sixth Circuit's practice at that time was to allow senior judges to sit on the en banc panel if they were "in regular active service at the time a poll was requested on the petition" for an en banc hearing. Grutter, 288 F.3d at 812 n.44 (Boggs, J., dissenting) (quoting then-Sixth Circuit Internal Operating Procedures rule 35(a));
16. see also Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808, 829-30 (6th Cir. 2002) (en banc) (describing the Sixth Circuit's rule regarding composition of the en banc court). Both Norris and Suhrheinrich were active at the time the appellee filed her petition, but both apparently had taken senior status by the time a poll was taken. Neither Norris nor Suhrheinrich participated in the en banc petition vote, as reflected in their absence from the list of judges voting on the petition. Gratz, 277 F.3d 803 (ordering, on October 19, 2001, that Grutter v. Bollinger, along with the undergraduate admissions case Gratz v. Bollinger, be heard initially en banc, and that oral argument in front of the three-judge panel, scheduled for October 23, 2001, be cancelled). The Sixth Circuit later changed its en banc participation rule to allow only judges in active service at the time of the en banc hearing to sit on the en banc court, avoiding the appearance of conflict with the statutory authorization for en banc hearings.
17. Id. (noting that the rule was changed to comply with 28 U.S.C. § 46(c) as amended in 1996).
18. See Grutter, 288 F.3d at 815 (Batchelder, J., dissenting) (concurring in Judge Boggs's dissenting opinion setting forth her accusation);
19. Charles Lane, Judges Spar Over Affirmative Action, WASH. POST, June 7, 2003, at A4 (noting the accusations set forth in the memorandum).
20. Grutter, 288 F.3d at 752-53 (Moore, J., concurring) (accusing Judge Boggs and Judge Batchelder, who concurred in Boggs's procedural appendix, of doing "a grave harm not only to themselves, but to this court and even to the Nation as a whole" by "publiciz[ing] disagreements over the internal workings of the court," and calling their conduct "nothing short of shameful")
21. Id. at 772 (Clay, J., concurring) (questioning Boggs's stated reasons for criticizing the Chief Judge's procedural decisions, and arguing that Boggs was motivated by disagreement with the majority rather than by any legitimate complaint);
22. see also Lane, supra note 12 (reporting that Chief Judge "Martin accused Batchelder and other conservatives of trying to delegitimize the 6th Circuit's ruling to increase the chances it [would] be overturned").
23. For the best explication and defense of the attitudinal model, see generally JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993);
24. JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED (2002) [hereinafter SEGAL & SPAETH, ATTITUDINAL MODEL REVISITED].
25. For a discussion of the development of this model in political science, see Tracey E. George, Developing a Positive Theory of Decisionmaking on U.S. Courts of Appeals, 58 OHIO ST. L.J. 1635, 1646-66 (1998).
26. For a discussion of its relevance to legal scholars, see, for example, Thomas W. Merrill, The Making of the Second Rehnquist Court: A Preliminary Analysis, 47 ST. LOUIS U. L.J. 569 (2003), which draws on the work of political scientists who study the Supreme Court but writes from the perspective of a legal scholar who believes the law matters,
27. and Gregory C. Sisk, Michael Heise & Andrew P. Morriss, Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning, 73 N.Y.U. L. REV. 1377 (1998), which tests a multivariate model of judicial decisions on the constitutionality of the Federal Sentencing Guidelines.
28. At the time of the en banc petition (May 14, 2001), six Democratic appointees and five Republican appointees sat on the Sixth Circuit Court: Carter appointee Martin; Reagan appointees Boggs and Norris; H.W. Bush appointees Suhrheinrich, Siler, and Batchelder; and Clinton appointees Daughtrey, Moore, Cole, Clay, and Gilman.
29. See Federal Judicial Center, supra note 10, for biographies of each judge showing by which President each was appointed. If Martin expected all judges to vote along party lines, then the Democratic appointees would have had only a minimum-winning coalition. But the position of Clinton appointee Gilman may have been unclear because he joined the court after seventeen years on the faculty of the University of Memphis Law School.
30. Federal Judicial Center, supra note 10 (search "Gilman, Ronald," then follow link). He ultimately voted against the University of Michigan Law School's admissions policy. Grutter, 288 F.3d at 815-18 (Gilman, J., dissenting) (concluding, consistent with Boggs's opinion, that the Law School's policy "results in a de facto quota" in violation of Bakke, but writing separately because he was "unpersuaded by [Boggs's] critique that no empirical link exists between a critical mass of minority students and the perceived educational benefits or [Boggs's] belief that race-neutral factors would be more likely to achieve the desired diversity of experience than reliance on an applicant's race").
31. See Grutter v. Bollinger, 188 F.3d 394, 401 (6th Cir. 1999) (Stafford, D.J., dissenting) (writing that the seventeen minority individuals and a nonprofit organization whose mission is to preserve opportunities in higher education for minorities should not be permitted to intervene). Senior District Judge William Stafford was appointed by President Ford to the Northern District of Florida.
32. Federal Judicial Center, supra note 10 (search "Stafford, William," then follow link).
33. In his concurring opinion, Judge Clay not only questioned Boggs's stated reasons for publishing a procedural appendix, but also suggested that Boggs waited to complain until after "opinions had been circulated" and "votes cast" in the hope "that if [the dissent's] substantive basis for disagreement with the majority opinion [wa]s not convincing, then questioning the procedural posture" would be. Grutter, 288 F.3d at 772 (Clay, J., concurring). Judge Moore asserted that the dissent's "argument... that the decisions of this court are not grounded in principle and reasoned argument, but in power, and that the judges of this court manipulate and ignore the rules in order to advance political agendas" was baseless.
34. Id. at 753 (Moore, J., concurring).
35. Id. at 735. Democratic appointees Martin, Daughtrey, Moore, Cole, and Clay voted to uphold the affirmative action program while Republican appointees Boggs, Siler, and Batchelder, along with Democratic crossover Gilman, voted to strike it.
36. See id. (listing the concurring and dissenting judges, as well as the holding of the case).
37. Judge Batchelder wrote a separate dissent for the sole purpose of specifically concurring in Boggs's procedural exegesis, saying, "Unless we expose to public view our failures to follow the court's established procedures, our claim to legitimacy is illegitimate." Id. at 815 (Batchelder, J., dissenting). In his dissent, Judge Siler did not concur in Boggs's inclusion of the procedural appendix.
38. Id. (Siler, J., dissenting). Judge Gilman also separately dissented, confining his critique to the merits of the case, and conspicuously avoiding any mention of Boggs's discussion of internal procedure.
39. Id. at 815-18 (Gilman, J., dissenting).
40. Judges, not surprisingly, have been less than satisfied with the attitudinalists' dismissal of their own accounts of their work. Chief Judge Harry T. Edwards of the D.C. Circuit argued: Ignoring the self-description of judges would be one thing if judging were a mechanical process, or one performed by people incapable of self-consciousness. But judging is a human activity, performed by human beings trained to think critically about their endeavor. To understand it fully requires considering the way those who perform the activity understand it.
41. Harry T. Edwards, Collegiality and Decision Making on the D.C. Circuit, 84 VA. L. REV. 1335, 1365 (1998). Attitudinalists are seeking to discern revealed, rather than stated, preferences.
42. See generally SEGAL & SPAETH, ATTITUDINAL MODEL REVISITED, supra note 15.
43. The most vocal critic on the bench has been D.C. Circuit Judge Edwards, although he appears to have tempered his criticism. See, e.g., Edwards, supra note 22, at 1335-36 (1998) (writing to "debunk the myth that ideology is a principal determinant in decision making" and "to refute the heedless observations of academic scholars who misconstrue and misunderstand the work of the judges of the D.C. Circuit");
44. Harry T. Edwards, Public Misperceptions Concerning the 'Politics" of Judging: Dispelling Some Myths About the D.C. Circuit, 56 U. COLO. L. REV. 619, 641 (1985) (seeking to "show that the increasingly popular image of the federal appellate courts as political bodies is a myth");
45. see also Gregory C. Sisk & Michael Heise, Judges and Ideology: Public and Academic Debates about Statistical Measures, 99 NW. U. L. REV. 743, 747-53 (2005) (discussing the debate between Edwards and legal scholars).
46. The managerial judging account was developed to describe how district judges have expanded their pre-trial role to achieve early resolution of cases through non-adjudicative processes rather than on the merits. See Judith Resnick, Managerial Judges, 96 HARV. L. REV. 374, 377-79 (1982).
47. See Report of the Federal Courts Study Committee, 22 CONN. L. REV. 733, 744-48 (1990) (presenting, as part of the final report of a special committee appointed by the Chief Justice pursuant to Congressional authority, an examination of the caseload crisis on the federal courts of appeals).
48. See Administrative Office of the U.S. Courts, Annual Report of the Director: Judicial Business of the United States Courts 2005 Table B, http://www.uscourts.gov/judbus2005/ appendices/b0.pdf, (reporting 68,743 filings for the term ending September 30, 2005);
49. see also 28 U.S.C. § 44(a) (2000) (authorizing a specific number of judgeships for each circuit).
50. As Judge Moore explained in her concurrence, "Although [the local] rule states that the third Sixth Circuit judge should be drawn at random, Chief Judge Martin has frequently substituted himself in a variety of matters ... in order to avoid inconveniencing other circuit judges." Grutter v. Bollinger, 288 F.3d 732, 757 (6th Cir. 2002) (en banc) (Moore, J., concurring).
51. Id. at 772 (Clay, J., concurring) ("Given the voluminous nature of the Court's docket and the shortage of judicial resources, the case management tasks performed by the Chief Judge are both necessary and appropriate, and were not in any sense improperly performed in relation to the instant case.").
52. A strategic departure occurred as this article was going to press: D.C. Circuit Chief Judge Douglas Ginsburg announced on January 24, 2008, that he was stepping down six months early and returning to active status. His early departure allowed Judge David Sentelle, who otherwise would have turned sixty-five before the end of Ginsburg's chief judge term, to succeed him. See Press Release, U.S. Court of Appeals for the D.C. Circuit (Jan. 24, 2008), available at http://www.cadc.uscourts.gov/internet/home.nsf/ content/announcements (select "Press Release - New Chief Judge beginning February 11, 2008") (on file with Vanderbilt Law Review).
53. See Table 1, infra p. 26 (listing the three distinct approaches that have been adopted over time: no term limits, an age limit of 70, and a term limit of seven years or until the judge reaches 70, whichever is earlier).
54. See, e.g., Richard A. Posner, What Do Judges and Justices Maximize? (The Same Things Everybody Else Does), 3 SUP. CT. ECON. REV. 1 (1993).
55. Classical legal theory, or formalism, distinguishes judicial power from executive and legislative powers based on its lack of decisionmaking discretion, See, e.g., J. WOODFORD HOWARD, JR., COURTS OF APPEALS IN THE FEDERAL JUDICIAL SYSTEM: A STUDY OF THE SECOND, FIFTH, AND DISTRICT OF COLUMBIA CIRCUITS 15 (1981) (observing that, under the classic model of judicial function set forth by Alexander Hamilton and John Marshall, "judges do not make the law but merely declare it; judges exercise neither political power nor personal will but merely judgment, a process bridled by law and the discipline of a professional craft");
56. Thomas C. Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1, 1-5 (1983) (describing the origins and evolution of classical legal orthodoxy beginning with the scientific theory of law espoused by Harvard Law School's first dean, Christopher Columbus Langdell).
57. See, e.g., KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS (1960) (explaining and testing the primary themes of legal realism);
58. see also Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 NW. U. L. REV. 251, 255-64 (1997) (describing the influence of other ideas on legal theory but the continued acceptance of the idea that judges wish to follow prior decisions).
59. Even D.C. Circuit Judge Edwards, who has been highly critical of attitudinal models of judging, recognizes that judges have opportunities to reach decisions consistent with their policy preferences and will do so, See, e.g., Harry T. Edwards, The Role of a Judge in Modern Society: Some Reflections on Current Practice in Federal Appellate Adjudication, 32 CLEV. ST. L. REV. 385, 389-90, 402 (1983-1984) (explaining that, in a given term, judges will encounter a small percentage of cases in which the proper decision is sufficiently unclear that they will have to exercise discretion);
60. see also BENJAMIN CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 164-65 (1921) (describing judicial discretion as to law);
61. R. Kent Greenawalt, Discretion and Judicial Decision: The Elusive Quest for the Fetters that Bind Judges, 75 COLUM. L. REV. 359, 377 (1975) (describing judicial discretion as existing when more than one possible answer has reasonably sound support).
62. See NEIL DUXBURY, PATTERNS OF AMERICAN JURISPRUDENCE 5 (1995) ("Judges ought to place their faith not in politics but in reason; and this requires that they endeavour to base controversial decisions on apolitical principles . . .");
63. Thomas C. Grey, Modern American Legal Thought, 106 YALE L.J. 493, 502-05 (1996) (book review) (discussing the belief held by classical legal thinkers that the judicial role is confined to deducing legal rules from basic principles).
64. For an intellectual history of the political science study of the courts, see generally Lee Epstein, Jack Knight & Andrew D. Martin, The Political (Science) Context of Judging, 47 ST. LOUIS U. L.J. 783 (2003).
65. See generally LAWRENCE BAUM, THE PUZZLE OF JUDICIAL BEHAVIOR (1997);
66. SHELDON GOLDMAN & TOM JAHNIGE, THE FEDERAL COURTS AS A POLITICAL SYSTEM (3d ed. 1985). Legal scholars, unlike social scientists, frequently are guided by the desire to rationalize judicial policymaking in a democracy. Lawyers and legal academics help to legitimize Article III courts by presenting the judge as a neutral and reasoned decision maker and by emphasizing the primacy of rules. As Justice Felix Frankfurter explained the position: "Our judicial system is absolutely dependent upon a popular belief that it is as untainted in its workings as the finite limitations of disciplined human minds and feelings make possible."
67. FELIX FRANKFURTER ON THE SUPREME COURT: EXTRAJUDICIAL ESSAYS ON THE COURT AND THE CONSTITUTION 78 (Philip Kurland ed., 1970).
68. The most cutting-edge work in political science is seeking not simply to explain past decisions but to predict future ones. Two political scientists, Andrew Martin and Kevin Quinn, joined forces with two law professors, Pauline Kim and Theodore Ruger, to test a multivariate forecasting model, in which a primary variable was ideological direction, against the predictions of legal experts. The model and the experts predicted the outcome of Supreme Court decisions for the 2002 Term. The model won. See Andrew D. Martin, Kevin M. Quinn, Theodore W. Ruger & Pauline T. Kim, Competing Approaches to Predicting Supreme Court Decision Making, 2 PERSP. POL. 761, 761 (2004);
69. Theodore W. Ruger, Pauline T. Kim, Andrew D. Martin & Kevin M. Quinn, The Supreme Court Forecasting Project: Legal and Political Science Approaches to Predicting Supreme Court Decisionmaking, 104 COLUM. L. REV. 1150, 1150 (2004).
70. See PAUL CARRINGTON, DANIEL J. MEADOR & MAURICE ROSENBERG, JUSTICE ON APPEAL 2 (1976) ("The traditional appeal calls for an examination of the rulings below to assure that they are correct, or at least within the range of error the law for sufficient reasons allows the primary decision-maker.");
71. ROSCOE POUND, APPELLATE PROCEDURE IN CIVIL CASES 3-4 (1940) (describing appellate review as serving a two-fold function: error-correction and uniformity check).
72. See Tracey E. George & Lee Epstein, On the Nature of Supreme Court Decision Making, 86 AM. POL. SCI. REV. 323, 326-28 (1992) (setting forth the attitudinal model and testing it against a legal model).
73. See SEGAL & SPAETH, ATTITUDINAL MODEL REVISITED, supra note 15, at 86-96, 312 (explaining the model's central tenet that "justices base their decisions on the merits on the facts of the case juxtaposed against their personal policy preferences").
74. Glendon Schubert, drawing on the work of social psychologists, was the first to propose a model of judicial decisionmaking based on Justices' attitudes. See GLENDON SCHUBERT, THE JUDICIAL MIND: THE ATTITUDES AND IDEOLOGIES OF SUPREME COURT JUSTICES, 1946-1963, at 5-6 (1965). David Rohde and Harold Spaeth expanded on Schubert's model with a construct of attitudes based on a set of interrelated beliefs and further observed that goals, rules, and situations influence judicial behavior generally.
75. See generally DAVID W. ROHDE & HAROLD J. SPAETH, SUPREME COURT DECISION MAKING (1976).
76. For a discussion of Schubert's and Rohde and Spaeth's work, see SEGAL & SPAETH, ATTITUDINAL MODEL REVISITED, supra note 15, at 6769;
77. Jeffrey A. Segal, Donald R. Songer & Charles M. Cameron, Decision Making on the U.S. Courts of Appeals, in CONTEMPLATING COURTS 227, 231-32 (Lee Epstein ed., 1995);
78. Harold J. Spaeth, The Attitudinal Model, in CONTEMPLATING COURTS, supra, at 296, 307.
79. See, e.g., Epstein, Knight & Martin, supra note 36, at 794 (explaining that the attitudinal theory, which they note is only one theory and not theirs, states that "the votes of judges on the merits of cases will reflect their sincerely-held ideological (read: liberal or conservative) attitudes over particular matters of public policy" if those judges have life-tenure, agenda control, and the final word).
80. See, e.g., James J. Brudney, Sara Schiavoni & Deborah Jones Merritt, Judicial Hostility Toward Labor Unions? Applying the Social Background Model to a Celebrated Concern, 60 OHIO ST. L.J. 1675, 1715 tbI.II (1999) (finding that Democratic circuit court appointees were much more likely than Republican appointees to favor unions);
81. Sheldon Goldman, Voting Behavior on the United States Courts of Appeals Revisited, 69 AM. POL. SCI. REV. 491, 501 tbl.7 (finding evidence of ideological voting in a range of issue areas including criminal procedure, labor, private economic, and torts);
82. Donald R. Songer & Susan Haire, Integrating Alternative Approaches to the Study of Judicial Voting: Obscenity Cases in the U.S. Courts of Appeals, 36 AM. J. POL. SCI. 963, 976 tbl.2 (1992) (finding, after controlling for other factors, that Carter and Johnson appointees were significantly more likely than other appointees to support First Amendment speech rights in obscenity suits and that Reagan appointees were much less likely).
83. See generally Daniel R. Pinello, Linking Party to Judicial Ideology in American Courts: A MetaAnalysis, 20 JUST. SYS. J. 219 (1999) (meta-analyzing 84 empirical studies of the relationship between judges' party identification and judicial decisions across a range of subjects, and concluding that party affiliation explains a substantial amount of the variance in the ideological direction of judicial decisions, particularly in federal courts (explaining 48% of the variance)).
84. Some research attempts to consider the influence of legally relevant facts as well as attitudes. But the definition of relevant facts is much narrower than that used in law, and the hypothesized influence is primarily in its relationship to the underlying views of the Justices. Hence, a Justice who generally favors broad police search power may consistently view homes as different from automobiles. See, e.g., George & Epstein, supra note 40, at 328 (demonstrating that legally relevant variables as well as political ones have an effect on the decisions of Justices);
85. Kevin McGuire, Obscenity, Libertarian Values, and Decision Making in the Supreme Court, 18 AM. POL. Q. 47, 47-53 (1990) (presenting a positive theory, including political and legal factors, of Supreme Court Justices' votes in obscenity cases);
86. Jeffrey A. Segal, Predicting Supreme Court Cases Probabilistically: The Search and Seizure Cases, 1962-1981, 78 AM. POL. SCI. REV. 891, 892 (1984) (explaining that earlier fact-based models used to predict Supreme Court decisions were not very successful, as they incorporated more variables (including many facts) than cases, and that later attempts to improve these models concentrated on limiting the number of variables). From the attitudinal perspective, the nature of the action, rather than a particular doctrine, prompts a specific ideological response.
87. See SEGAL & SPAETH, ATTITUDINAL MODEL REVISITED, supra note 15, at 312-14 ("To phrase the matter from the standpoint of attitude theory [whose intellectual origin is psychology,] .... behavior may be said to be a function of the interaction between an actor's attitude toward an 'object' (i.e., persons, places, institutions, and things) and that actor's attitude toward the situation in which the object is encountered."
88. (quoting MILTON ROKEACH, BELIEFS, ATTITUDES AND VALUES: A THEORY OF ORGANIZATION AND CHANGE 112-22 (1968))).
89. See Tracey E. George & Michael E. Solimine, Supreme Court Monitoring of the United States Courts of Appeals En Banc, 9 SUP, CT. ECON. REV. 171, 171 (2001) (reporting that the Supreme Court grants review to less than 4% of paid petitions).
90. For a discussion of the Court's exercise of its agenda control, see H.W. PERRY, DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT (1991),
91. and Lawrence A. Baum, Case Selection and Decisionmaking in the U.S. Supreme Court, 27 LAW & SOC'Y REV. 443 (1993).
92. See, e.g., Edwards, supra note 34. Based on his experience as a D.C. Circuit judge, Edwards estimated "that approximately one-half of the cases decided are easy; the pertinent legal rules seem to me unambiguous and their application to the facts appears clear." He then added, regarding the remaining one-half of the cases: A dispute falling into this category, I believe, admits of only one "right answer". .., [in the remaining one-half], the answers are not so clear, In only a relatively small subset of these, however, do I feel I may and must exercise what I will call "discretion." Using rough numbers, I would say that in only five to fifteen percent of the disputes that come before me do I conclude ... that to dispose of the appeal I must rely on some significant measure of discretion.
93. Id. Edwards describes the remaining subset as "hard cases," and allows that judges may be influenced in such cases by their views on the underlying social issue.
94. Id.;
95. see also J. Edward Lumbard, Current Problems of the Federal Courts of Appeals, 54 CORNELL L. REV, 29, 36 (1968) (asserting that "[m]ost appellate judges would agree that the result in about seventy-five per cent of appeals is clearly foreseeable after argument, regardless of which judges sit on those cases," but that the remaining 25% are close cases).
96. See 28 U.S.C. §§ 44, 46 (2000) (providing statutory authority for en banc sittings);
97. FED, R. APP. P. 35 (providing procedural rules governing en banc hearings).
98. For a detailed discussion of the history and modern use of en banc review, see generally Tracey E. George, The Dynamics and Determinants of the Decision to Grant En Banc Review, 74 WASH. L. REV. 213 (1999).
99. See George, supra note 16, at 1678-86 (explaining that empirical studies of the internal and external influences on Supreme Court Justices "have merit in the context of the en banc courts of appeals");
100. CHRISTOPHER P. BANKS, JUDICIAL POLITICS IN THE D.C. CIRCUIT 88 (1999) (discussing the fact that "[w]hile en banc review and appeal to the Supreme Court are distinct judicial conventions, both still involve the use of discretion that is political").
101. See George & Solimine, supra note 46, at 176-78 figs.1 & 2, 200 app.1 (estimating that less than one percent of cases are heard en banc);
102. see also A. Lamar Alexander, Jr., Note, En Banc Hearings in the Federal Courts of Appeals: Accommodating Institutional Responsibilities (Part I), 40 N.Y.U. L. REV. 563, 564, 608 app.IV (1965) (finding that only 423 cases were decided en banc by all circuits from 1940 to 1964, and that only 1.5% of decisions in 1964 were rendered en banc).
103. See, e.g., VIRGINIA A. HETTINGER, STEFANIE A. LINDQUIST & WENDY L. MARTINEK, JUDGING ON A COLLEGIAL COURT: INFLUENCES ON FEDERAL APPELLATE DECISION MAKING 117 (2006) ("The scholarship devoted to appellate reversal strongly indicates that the match (or mismatch) of preferences between reviewing judges and those under review matters a great deal.");
104. Brudney, Schiavoni & Merritt, supra note 44, at 1736-37 (finding that judicial attributes are more influential in predicting outcomes on politically divisive issues as compared to nondivisive issues);
105. Goldman, supra note 44, at 491, 504 (conducting an examination of nonunanimous courts of appeals decisions to find judicial behavior representing political and economic attitudes);
106. Donald R. Songer, Consensual and Nonconsensual Decisions in Unanimous Opinions of the United States Courts of Appeals, 26 AM. J. POL. SCI. 225, 225 (1982) (observing that most appellate court research looks only at divided decisions).
107. See, e.g., Donald R. Songer & Sue Davis, The Impact of Party and Region on Voting Decisions in the United States Courts of Appeals, 1955-1986, 43 W. POL. Q. 317, 327-28 (1990) (hypothesizing that new political issues may explain the increased partisan effects on judges);
108. Songer & Haire, supra note 44, at 978 (arguing that judges may respond differently to politically sensitive or divisive issues like those presented in civil liberties cases than to other issues on their agenda).
109. Legal scholar Richard Revesz, for example, has found this to be true for D.C. Circuit judges in regulatory cases. See, e.g., Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717, 1771-72 (1997).
110. For example, another judge on a panel may blow the whistle on a colleague who votes ideologically. See, e.g., Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 YALE L.J. 2155, 2173-76 (1998) (describing the phenomenon and proposing a panel assignment system that ensures the presence of a watchdog judge on each panel).
111. For Supreme Court studies, see, for example, Jeffrey A. Segal & Robert Boucher, Supreme Court Justices as Strategic Decision Makers: Aggressive Grants and Defensive Denials on the Vinson Court, 57 J. POL. 824 (1995).
112. For courts of appeals studies, see, for example, Micheal Giles, Thomas Walker & Christopher Zorn, Setting a Judicial Agenda: The Decision to Grant En Banc Review in U.S. Courts of Appeals, 68 J. POL. 852 (2006).
113. For Supreme Court studies, see, for example, LEE
114. For courts of appeals studies, see, for example, HETTINGER, LINDQUIST & MARTINEK, supra note 52.
115. For Supreme Court studies, see, for example, Timothy M, Hagle, Strategic Retirements: A Political Model of Turnover on the United States Supreme Court, 15 POL. BEHAV. 25 (1993).
116. For courts of appeals studies, see, for example, Albert H. Yoon, Pensions, Politics, and Judicial Tenure: An Empirical Study of Federal Judges, 1869-2002, 8 AM. L. & ECON. REV. 143 (2006).
117. Since the Judiciary Act of 1925, the Supreme Court has had an extremely limited original jurisdiction which accounts for only a handful of cases each year. For a history of the Supreme Court's certiorari policy and relevant statistics, see RICHARD H. FALLON ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1580-1612 (5th ed. 2003).
118. See, e.g., Charles M. Cameron, Jeffrey A. Segal & Donald Songer, Strategic Auditing in a Political Hierarchy: An Informational Model of the Supreme Court's Certiorari Decisions, 94 AM. POL. SCI. REV. 101, 101 (2000) (developing and testing a strategic model of Supreme Court certiorari decisions where the Court responds to signals and indices from courts of appeals, termed a "judicial signaling game," and finding that a conservative Court was more likely to review liberal decisions by liberal lower courts);
119. Richard L. Pacelle, Jr., The Dynamics and Determinants of Agenda Change in the Rehnquist Court, in CONTEMPLATING COURTS, supra note 42, at 251, 251-53 (discussing research demonstrating that "[t]he factors that govern the selection of cases and the construction of an annual agenda are closely tied to the factors that explain the justices' decisions on the merits of cases").
120. See George, supra note 49, at 236-72 (finding that courts were more likely to rehear cases en banc when the ideological direction of a panel's decision was contrary to the circuit's, the ideological composition of the panel was different from the circuit's, and/or the panel was divided or reversed the district court);
121. Giles, Walker & Zorn, supra note 56, at 852-65 (analyzing "the influence of ideological and legal factors on the grant of en banc rehearing in the U.S. Courts of Appeals-one of the few instances of agenda control in the lower federal courts").
122. See WALTER MURPHY, ELEMENTS OF STRATEGY 56-68 (1964) (documenting vote-trading exchanges reflected in the papers of Justices Murphy, Stone, and Taft).
123. For empirical evidence from the Supreme Court, see EPSTEIN & KNIGHT, supra note 57;
124. FORREST MALTZMAN, JAMES F. SPRIGGS II & PAUL J. WAHLBECK, CRAFTING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME 57-76 (2000).
125. For empirical evidence from the courts of appeals, see HETTINGER, LINDQUIST & MARTINEK, supra note 52 at 75-78.
126. U.S. CONST, art. III, § 1.
127. See Gary King, Appointments to the Supreme Court: Adding Systematic Explanation to Probabilistic Description, 15 AM. POL. Q. 377, 383-84 (1987) (finding that Justices time retirements to occur at an ideologically optimal time);
128. Christopher J.W. Zorn & Steven R. Van Winkle, A Competing Risks Model of Supreme Court Vacancies, 1789-1992, 22 POL. BEHAV. 145, 146-50 (2000) (finding that political factors, along with personal considerations and institutional influences, explain Justices' tenure decisions).
129. But see Richard L. Vining, Jr., Christopher Zorn & Susan Navarro Smelcer, Judicial Tenure on the U.S. Supreme Court, 1790-1868: Frustration, Resignation, and Expiration on the Bench, 20 STUD. AM. POL. DEV. 198, 207-10 (2006) (reporting that institutional and personal factors, such as finances and health, played a much larger role than political ones in the tenure decisions of early Justices). While Justices, including the Chief Justice, may seek to time their departures to affect who replaces them, they are working with complex probabilistic determinations. A Chief Justice may choose to step down under a specific President in hopes that his replacement will hold the President's ideological positions. This will depend on both the nomination and confirmation processes as well as the new appointee's actual behavior on the Court. The Chief Justice, then, does not have the chief judge's luxury of predicting with near certainty the judicial behavior of his replacement. In fact, a Chief Justice may not even be correct in predicting the President who will replace him, as Earl Warren learned to his dismay.
130. See Deborah Barrow & Gary Zuk, An Institutional Analysis of Turnover on the Lower Federal Courts, 1900-1987, 52 J. POL. 457, 464, 466-73 (1990);
131. James F. Spriggs II & Paul J. Wahlbeck, Calling It Quits: Strategic Retirements on the Federal Courts of Appeals, 1893-1991, 48 POL. RES. Q. 573, 573, 577, 588-90, 592 (1995).
132. See Albert H. Yoon, Love's Labor's Lost: Judicial Tenure Among Lower Federal Court Judges, 1945-2000, 91 CAL. L. REV. 1029, 1041, 1045-49, 1052, 1056-57 (2003) (presenting evidence from an empirical study of judicial tenure decisions).
133. But see Ahmed Taha, Publish or Paris? Evidence of How Judges Allocate Their Time, 6 AM. L. & ECON. REV. 1, 20 (2004) (considering the influence of workload and other variables on district judge decisions to publish opinions, and finding that lower caseload, controlling for other variables, increased the probability that a judge published an opinion).
134. See Resnick, supra note 24, at 378;
135. see also Maximo Langer, The Rise of Managerial Judging in International Criminal Law, 53 AM. J. COMP. L. 835, 874-85 (2005) (describing Resnick's managerial model).
136. Resnick, supra note 24, at 378-80.
137. Id. at 391.
138. Ahmed Taha's incorporation of the workload variable into a study of district judge's opinion publication decisions is an example. Taha, supra note 68, at 6, 13, 25. Maximo Langer has applied the model to international criminal proceedings. Langer, supra note 69.
139. See, e.g., Richard J. Cardamone, Foreword: How an Expanding Caseload Impacts Federal Appellate Procedures, 65 BROOK. L. REV. 281, 286-90 (1999);
140. William L. Reynolds & William M. Richman, Studying Deck Chairs on the Titanic, 81 CORNELL L. REV. 1290, 1290, 1293 (1996);
141. William M. Richman & William L. Reynolds, Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition, 81 CORNELL L. REV. 273, 279-92 (1996).
142. See, e.g., Penelope Pether, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435, 1442-83 (2004) (describing the history and current state of nonpublication in appellate courts and the dangers that the practice presents);
143. Sarah E. Ricks, The Perils of Unpublished Non-Precedential Federal Appellate Opinions: A Case Study of the Substantive Due Process State-Created Danger Doctrine in One Circuit, 81 WASH. L. REV. 217, 228-35 (2006) (arguing that unpublished opinions "create a number of risks for courts and litigants, including: doctrinal shifts from precedential decisions; uncertainty about the persuasive value of non-binding decisions issued by the hierarchically superior court; mistaken predictions of an opinion's future usefulness; and unpredictability of judicial outcomes");
144. David C. Vladeck & Mitu Gulati, Judicial Triage: Reflections on the Debate Over Unpublished Opinions, 62 WASH. & LEE L. REV. 1667, 1676-90 (2005) (arguing against the use of unpublished opinions because it "provides incentives for strategic game-playing by appellate courts and sophisticated appellate lawyers").
145. David J. Danelski, The Influence of the Chief Justice in the Decisional Process, in AMERICAN COURT SYSTEMS: READINGS IN JUDICIAL PROCESS AND BEHAVIOR 506, 506 (Sheldon Goldman & Austin Sarat eds., 1978) (arguing that Chief Justices have the potential to exert both "social" and "task" leadership). Various qualitative and quantitative studies have demonstrated the potential and real influence of Chief Justices.
146. See, e.g., Frank B. Cross & Stefanie Lindquist, Doctrinal and Strategic Influences of the Chief Justice: The Decisional Significance of the Chief Justice, 154 U. PA. L. REV. 1665 (2006) (studying the effect that Chief Justices Rehnquist and Burger had on the decisionmaking of their respective courts);
147. Sue Davis, The Chief Justice and Judicial Decision-Making: The Institutional Basis for Leadership on the Supreme Court, in SUPREME COURT DECISION-MAKING: NEW INSTITUTIONALIST APPROACHES 135 (Cornell W. Clayton & Howard Gillman eds., 1999) (examining the influence of Chief Justice Rehnquist);
148. Joseph F. Kobylka, Leadership on the Supreme Court of the United States: Chief Justice Burger and the Establishment Clause, 42 W. POL. Q. 545 (1989) (arguing that Chief Justice Burger, for many reasons, failed to lead the court effectively).
149. See, e.g., MORTON J. HORWITZ, THE WARREN COURT AND THE PURSUIT OF JUSTICE (1998);
150. BERNARD SCHWARTZ, SUPER CHIEF: EARL WARREN AND HIS SUPREME COURT - A JUDICIAL BIOGRAPHY (1983).
151. See, e.g., Theodore W. Ruger, Chief Justice Rehnquist's Appointments to the FISA Court: An Empirical Perspective, 101 NW. U. L. REV. 239 (2007) (exploring the ideological views of the Chief Justice's appointees to this controversial court).
152. The Independent Counsel statute, 28 U.S.C. §§ 591-99 (2000), delegates to a special three-judge panel the power to appoint the Independent Counsel and to oversee the counsel's work. Id. §§ 591, 593. The Chief Justice names the judges to that panel.
153. Id. § 49(d) ("The Chief Justice of the United States shall designate and assign three circuit court judges or justices, one of whom shall be a judge of the United States Court of Appeals for the District of Columbia, to such division of the court. Not more than one judge or justice or senior or retired judge or justice may be named to such division from a particular court.").
154. Chief Justice Rehnquist selected two conservative judges-D.C. Circuit Judge David Sentelle and Eleventh Circuit Judge Peter Fay - and one liberal judge-Fourth Circuit Senior Judge John Butzner-to the panel that ultimately chose Ken Starr, John Q. Barrett, Special Division Agonistes, 5 WIDENER L. SYMP. J. 17, 44-47 tbl.1 (2000) (listing the judges who have served on the special division and the independent counsel appointed by each such division).
155. See, e.g., Kobylka, supra note 75 (enumerating, in his examination of Chief Justice Burger's failure to lead the Court, the ways in which a Chief Justice may influence his colleagues and the Court);
156. Forrest Maltzman & Paul J. Wahlbeck, A Conditional Model of Opinion Assignment on the Supreme Court, 57 POL. RES. Q. 551, 559-61 (2004) (finding that Chief Justices are likely to use opinion assignments to further policy goals when the conference majority is greater than five, the case is important, and the assignment is made earlier in the term).
157. Second Circuit Chief Judge Edward Lumbard made this claim in an article advocating for certain changes in court policy and structure. He characterizes circuit chief judges in this way because they must persuade their colleagues to agree to any decision (at least enough other judges to create a majority). Interestingly, his discussion makes clear that he had particular luck doing so. Lumbard, supra note 48, at 42.
158. One exception might be Learned Hand's leadership of the Second Circuit during the 1940s and early 1950s, which has led some to call it the Hand court. E.g., MARVIN SCHICK, LEARNED HAND'S COURT (1970).
159. See Will Shafroth, Survey of the United States Courts of Appeals, 42 F.R.D. 243, 284 (1967) (reporting, based on a 1966 survey of all circuit judges, that "[t]he Chief Judges all have heavy administrative duties on which they spend from one-third to one-half their time").
160. See id.; FEDERAL JUDICIAL CENTER, TEMPLATE FOR CHIEF CIRCUIT JUDGES' DESKBOOK 12-17 (2001) [hereinafter CHIEF CIRCUIT JUDGES' DESKBOOK] (describing the circuit-wide administrative duties assigned to the chief judge).
161. See, e.g., WILLIAM A. NISKANEN, JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT (1971) (arguing that bureaucrats are able to use their power to impose their preferences upon the legislature);
162. Cheryl L. Eavey & Gary J. Miller, Bureaucratic Agenda Control: Imposition or Bargaining?, 78 AM. POL. SCI. REV. 719, 730 (1984) (finding support for a bureaucratic-legislative bargaining theory);
163. Thomas H. Hammond, Agenda Control, Organizational Structure, and Bureaucratic Politics, 30 AM. J. POL. SCI. 379 (1984) (examining how bureaucratic structure influences the inner workings and policy output of administrative agencies).
164. See generally CHIEF CIRCUIT JUDGES' DESKBOOK, supra note 83 (providing a description of the duties performed by circuit judges).
165. Congress has authorized circuits to decide cases in three-judge panels, but it has not addressed the process of assigning judges to those panels, except for the Federal Circuit. 28 U.S.C. § 46(b) (2000). Chief judges have statutory authority to assign visiting, senior, and designated district judges to panels, id. §§ 292, 294, 295, and oversee circuit staff.
166. Id. § 332. Not surprisingly, then, chiefs have varying degrees of discretion and responsibility for the panel assignment process. Chief Judge Wilfred Feinberg, for example, reported that "[i]n the Second Circuit, it is the responsibility of the chief judge to select and organize the composition of the panels of three judges."
167. Wilfred Feinberg, The Office of Chief Judge of a Federal Court of Appeals, 53 FORDHAM L. REV. 369, 374 (1984).
168. For a detailed examination of individual circuit practices (with particular consideration of the power of the chief judge), see Professor Jay Brown, Circuit Practices (Jan. 1, 2000) (unpublished appendix to J. Robert Brown, Jr. & Allison Herren Lee, Neutral Assignment of Judges at the Court of Appeals, 78 TEX. L. REV. 1037 (2000)), available at http://www.law.du.edu/jbrown/courts/Default.htm (follow "Circuit Practices" link).
169. 28 U.S.C. § 293.
170. Id. § 294.
171. Id. § 292.
172. Id. § 2284.
173. See Patricia M. Wald,... Doctor, Lawyer, Merchant, Chief, 60 GEO. WASH. L. REV. 1127, 1130 (1992) ("Many, if not most, Chief Judges maintain a full calendar of cases as I did ....");
174. cf. RUSSELL R. WHEELER & CHARLES W. NIHAN, ADMINISTERING THE FEDERAL JUDICIAL CIRCUITS: A SURVEY OF CHIEF JUDGES' APPROACHES AND PROCEDURES 6 tbl.l (1982) (reporting, based on interviews of every chief judge and circuit executive, that only four of twelve chief judges heard fewer cases than they heard prior to becoming chief judge).
175. 28 U.S.C. § 45(b) ("The chief judge shall have precedence and preside at any session of the court which he attends. Other circuit judges of the court in regular active service shall have precedence and preside according to the seniority of their commissions. Judges whose commissions bear the same date shall have precedence according to seniority in age. The circuit justice, however, shall have precedence over all the circuit judges and shall preside at any session which he attends.").
176. Judiciary Act of 1789, ch. 20, § 1, 1 Stat. 73.
177. See id. The Act created "district" and "circuit" courts. Both acted essentially as trial courts although the circuit courts had some limited appellate authority over districts courts. District courts acted through a single judge, while circuit courts acted through a three-judge panel comprised of one district judge and two Supreme Court Justices.
178. Id.
179. See Evarts Act of 1891, ch. 517, §§ 2-3, 26 Stat. 826, 826-27. Seniority was first by court of appointment (Justice over circuit judge over district judge), and then by time of appointment.
180. Id. § 2, 26 Stat, at 827.
181. Id. §§ 2-3, 26 Stat, at 826-27. The Attorney General had responsibility for obtaining physical space for judges to work and hear cases.
182. Id. § 9, 26 Stat, at 829.
183. See William H. Taft, Attacks on the Courts and Legal Procedure, 5 KY. L.J. 3, 14-15, 17 (1916) (reporting his speech delivered in 1914 at the Cincinnati Law School commencement);
184. see also PETER GRAHAM FISH, THE POLITICS OF FEDERAL JUDICIAL ADMINISTRATION 30-32 (1973) (describing Taft's judicial reform work based on an examination of published materials, as well as relevant correspondence between Taft and the Attorney General, and the internal Department of Justice memoranda).
185. See William Howard Taft, Possible and Needed Reforms in Administration of Justice in Federal Courts, 8 A.B.A. J. 601, 601-02 (1922).
186. See Judiciary Act of 1922, ch. 306, §2, 42 Stat. 837, 837-40 (codified as amended at 28 U.S.C. § 331 (2000 & Supp. II 2002)) (providing that the Chief Justice call an annual conference of "the senior circuit judge of each judicial circuit");
187. see also FELIX FRANKFURTER & JAMES M. LANDIS, THE BUSINESS OF THE SUPREME COURT 227-29 (1928) (describing Taft's judicial reform efforts, particularly regarding court management, and how he achieved most of his reform goals only after he became Chief Justice);
188. Walter F. Murphy, Chief Justice Taft and the Lower Court Bureaucracy: A Study in Judicial Administration, 24 J. POL. 453, 453-59, 475-76 (1962) (analyzing Taft's efforts to create a bureaucratic structure within the judicial branch as a means to improve Supreme Court-lower court relations);
189. Taft, supra note 98 (encouraging members of the American Bar Association to support the act).
190. See Judiciary Act of 1922 § 2, 42 Stat, at 838 (requiring the conference to "make a comprehensive survey of the condition of business in the courts of the United States" and make any necessary recommendations);
191. see also CS. Potts, Unification of the Judiciary, A Record of Progress, 2 TEX. L. REV. 445, 448, 458-63 (1924) (describing the activities of the first two meetings of the Federal Judicial Council).
192. See Judiciary Act of 1922 §§ 3, 5, 42 Stat, at 839-40 (amending sections 13 and 18 of the existing Judicial Code).
193. See Judicial Code of 1948, ch. 646, §§ 45, 136, 62 Stat. 869, 871 (codified as amended at 28 U.S.C § 45 (2000)). The Code also changed the name of federal intermediate appellate courts from "circuit courts of appeals" to "courts of appeals."
194. Id. § 43(a), 62 Stat, at 870 (codified at 28 U.S.C. §43(a)).
195. Reviser's Note, H.R. REP, No. 80-308, at A6 (1947).
196. Judicial Code of 1948 § 45, 62 Stat, at 871.
197. Albert B. Maris, New Federal Judicial Code: Enactment by 80th Congress a Notable Gain, 34 A.B.A. J. 863, 864-66 (1948) (considering the administrative needs in both district and circuit courts). One district judge believed the 1948 Act merely produced a "change[] of nomenclature of rather minor importance" because the most senior judge became the chief judge.
198. Clarence G. Galston, An Introduction to the New Federal Judicial Code, 8 F.R.D. 201, 202 (1948). Judge Galston is right, up to a point: The statute's only specific command was to change the name of the position. But, as Maris argues, Congress thereby acknowledged the significant evolution in the position's authority between 1922 and 1948.
199. Judicial Code of 1948 §§ 45, 136, 62 Stat, at 871, 897.
200. Id. §136, 62 Stat, at 871 ("If the chief judge desires to be relieved of his duties as chief judge while retaining his active status as circuit judge, he may so certify to the Chief Justice of the United States.").
201. Act of Aug. 6, 1958, Pub. L. No. 85-593, 72 Stat. 497;
202. see S. REP. NO. 85-1780 (1958), as reprinted in 1958 U.S.C.C.A.N. 3256, 3257-58, 3260;
203. 1956 ANNUAL REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 312.
204. The Senate Report on the Federal Courts Improvement Act of 1982 explained that under the Evarts Act, "a judge who becomes chief judge ... at age 50 may serve as chief judge for twenty years, while a judge who becomes chief judge at age 69 will serve for only one year." S. REP. NO. 97-275, at 25 (1981). Thus, a statutory scheme based "solely on senority, without a minimum or maximum term" might "require the retention for decades of a chief judge who may or may not have the interest or ability to be an enthusiastic administrator" and may also lead to "rapid rotation... creating instability in the chief administrative office of the court."
205. Id. The Report notes that both had occurred. Id. The purpose of the revision was to solve the former problem through a maximum term of office and to solve the latter by starting a chief judge's term at least six years before she turns the mandatory retirement age of seventy."
206. Id. at 25-26. In 1975, the Hruska Commission on Revision of the Federal Court Appellate System Structure and Internal Procedures recommended the move to a single seven-year term in order "to minimize the impact of a chief judge who lacks administrative abilities, while allowing the chief judges who are good administrators sufficient time to have a beneficent effect on the functioning of their circuits."
207. Hruska Commission, Recommendations for Change, 67 F.R.D. 195, 274 (1975).
208. The mandatory term limit of seven years did not apply to chief judges who took office prior to the Act's October 1, 1982 effective date. Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, § 203, 96 Stat. 51, 53 (1982).
209. 28 U.S.C. § 45(a)(1) (2000). The statute includes a method of selection when no one satisfies these requirements. The chief judge will be either the youngest circuit judge over sixtyfour who has served for at least one year or, if no judge meets those criteria, the most senior of the active judges who has not served previously as chief judge. Id. § 45(a)(2)(A)-(B). An appointment under these conditions is temporary, lasting until someone fulfills the three core requirements.
210. Id. § 45(a)(3)(B).
211. The Hruska Commission on Revision of the Federal Court Appellate System considered alternatives such as election by peers or selection by a higher court, but rejected both because they would "politicize the selection process." Hruska Commission, supra note 109.
212. See 28 U.S.C. § 45(a)(1) (providing that the chief judge must be in "regular active service" and thus neither retired nor senior);
213. id. § 45(c) ("If the chief judge desires to be relieved of his duties as chief judge while retaining his active status as circuit judge, he may so certify to the Chief Justice of the United States.").
214. Appendix Table 2A, infra p. 51, depicts these variables by circuit.
215. See 28 U.S.C. § 45(b) ("The chief judge shall have precedence and preside at any session of the court which he attends.");
216. see also E. Barrett Prettyman, The Duties of a Circuit Chief Judge, 46 A.B.A. J. 633, 633 (1960) (describing his experience as chief judge of the D.C. Circuit).
217. Based on extensive interviews with circuit judges, J. Woodford Howard concluded that "[h]aving psychological advantages as presiding officers, [chief judges] are expected to lead discussions, clarify issues, and speak for the court in the most controversial cases." HOWARD, supra note 32, at 226.
218. See, e.g., J. Woodford Howard, Jr., On the Fluidity of Judicial Choice, 62 AM. POL. SCI. REV. 43 (1968) (presenting evidence that judicial decisions reflect the end of a process that is quite fluid, in which judges shift positions and bargain over outcomes).
219. See, e.g., LINDA J. GREENHOUSE, BECOMING JUSTICE BLACKMUN 33-34 (2005) (discussing then-Eighth Circuit Judge Blackmun's communications with his colleagues in which he offered to eliminate from a death penalty opinion language revealing his personal doubts about the death penalty if they disapproved of the comments).
220. See Papers of Justice Harry Blackmun, Library of Congress, Box 12, Folder 13 [hereinafter Blackmun Papers]. Warren Burger, then sitting on the D.C. Circuit, complained to his friend Harry Blackmun that new judges were too under the sway of the chief, someone with whom Burger sharply disagreed.
221. Id.
222. CHIEF CIRCUIT JUDGES' DESKBOOK, supra note 83, at 6 & n.23.
223. Id. at 6.
224. Danelski, supra note 75, at 506-07 (explaining how the Chief Justice's influence over associate Justices on the Supreme Court works).
225. For example, a chief may decide to assign certain types of cases for initial review by a staff attorney. CHIEF CIRCUIT JUDGE'S DESKBOOK, supra note 83.
226. Criminal Justice Act, 18 U.S.C. § 3006A(d)(3), (e)(3) (2000 & Supp. IV 2004).
227. 28 U.S.C. §§ 351-52 (2000 & Supp. II 2002) (providing that all complaints received regarding a judge's conduct be promptly transmitted to the chief judge and that the chief judge determine the course of action to take); id. § 372(a)-(c) (requiring that any district or circuit judge who desires to retire from active service as a result of permanent disability affecting his capacity to perform his duties must submit to the President a certificate of disability signed by the chief judge of his circuit). Furthermore, as part of ethics rules, the Regulations of the Judicial Conference require judges to obtain chief circuit judge approval for any compensated teaching. Regulations of the Judicial Conference of the United States under Title VI of the Ethics Reform Act of 1989 Concerning Outside Earned Income, Honoraria, and Outside Employment § 5(d)(3) (Aug, 15, 1990), available at http://www.uscourts.gov/library/conduct_outsideemployment. html.
228. For an example of such a communication, see Blackmun Papers, supra note 119, at Box 38, Folder 16, Case File 571. Eighth Circuit Chief Judge Vogel included with a motion for en banc hearing a cover letter to his colleagues subtly encouraging en banc review. One judge in a subsequent letter to his colleagues questioned the merits of a full court hearing but nevertheless stated he would defer to "you as Chief judge to handle this as you think best."
229. Id.
230. See 28 U.S.C. § 331 (providing that the Chief Justice shall summon the chief judge of each circuit to be a member of the U.S. Judicial Conference);
231. id. § 332 (providing that at least twice a year, the chief judge of each circuit shall call and lead a judicial council of circuit and district judges within that circuit);
232. id. § 333 (2000) (providing that the chief judge of each circuit may call and run circuit judicial conferences that include district judges as well as invited members of the bar);
233. id. § 474(a) (providing that the chief circuit judge and chief district judges of each circuit shall meet to discuss civil justice expense and delay reduction plans under the Civil Justice Reform Act of 1990).
234. Wald, supra note 91, at 1127 n.2.
235. Congress dictates when three-judge district courts, comprised of one circuit and two district judges, will be used instead of a single district judge. See 28 U.S.C. § 2284 (providing that a three-judge panel "shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment" of a congressional or state voting district). Parties in such disputes appeal directly to the Supreme Court, bypassing the court of appeals. Id. § 1253. After a period of popularity, three-judge district panels are now required infrequently, but continue to decide timely voting rights and civil rights case.
236. See id. § 2284. The highly anticipated Texas redistricting case, arising from Tom Delay's 2003 efforts to ensure Republican control of state legislative offices for the foreseeable future, was first heard by a three-judge district court that included Fifth Circuit Judge Patrick Higginbotham and District Judges Lee Rosenthal and T. John Ward. Henderson v. Perry, 399 F. Supp. 2d 756, 758 (E.D. Tex. 2005). The Supreme Court largely upheld their ruling. League of United Latin Am. Citizens v. Perry, 126 S. Ct. 2594 (2006).
237. See generally J. W. PELTASON, FIFTY-E IGHT LONELY MEN: SOUTHERN FEDERAL JUDGES AND SCHOOL DESEGREGATION (1962) (explaining how, in the years following the Brown II decision, the local battles over its implementation took place largely in Fifth Circuit courtrooms).
238. See Armstrong v. Bd. of Educ., 323 F.2d 333, 352-61 (Cameron, J., dissenting from denial of rehearing en banc). Cameron accused Chief Judge Elbert P. Tuttle of "gerrymandering" circuit panels and three-judge district panels to ensure that they were dominated by "The Four," referring to the pro-civil rights judges: Chief Judge Tuttle and Judges Richard T. Rives, John Minor Wisdom, and John R. Brown.
239. Id. at 353 n.1, 359. Cameron wrote, "The idea that the Chief Judge may thus gerrymander the United States Judges of a State in order to accomplish a desired result is, I think, entirely foreign to any just concept of the proper functioning of the judicial process."
240. Id. at 359.
241. Tuttle only gained the chief position (and case-assignment authority) because Judge Rives, who became chief judge in 1959, stepped down after less than a year in order to allow Judge Tuttle to take over circuit leadership. See FRANK T. READ & LUCY S. MCGOUGH, LET THEM BE JUDGED: THE JUDICIAL INTEGRATION OF THE DEEP SOUTH 183 (1978) (explaining that Judge Rives's resignation was timed so that Tuttle would become chief judge, and quoting a statement by Judge Rives that Tuttle "was an ideal man to be chief judge" and had "much administrative ability" (internal quotations omitted));
242. JOHN M. SPIVACK, RACE, CIVIL RIGHTS AND THE UNITED STATES COURT OF APPEALS FOR THE FIFTH JUDICIAL CIRCUIT 126-27 (1990) (describing the autocratic rule of Hutcheson, who "ran his court with strict discipline").
243. Burton M. Atkins & William Zavoina, Judicial Leadership on the Court of Appeals: A Probability Analysis of Panel Assignment in Race Relations Cases on the Fifth Circuit, 18 AM. J. POL. SCI. 701, 709 (1974) (finding that the pro-desegregation judges heard civil rights cases "at a frequency significantly above that which would be expected by chance").
244. Of course, a policy of random assignments does not mean assignments are, in fact, random or that people will not contend that they are not. Despite the Seventh Circuit's official policy of random assignments, lawyers have complained that panel assignments are nonrandom. The Chicago Council of Lawyers, a "public interest bar association," investigated these concerns and failed to find systematic evidence to support the accusations. Chicago Council of Lawyers, Evaluation of the United States Court of Appeals for the Seventh Circuit, 43 DEPAUL L. REV. 673, 705-06 (1994) ("For a long time, many members of the bar have expressed concern that assignments to panels are not in fact random. All the evidence that the council has seen is to the contrary, however, and the Council is convinced that the official policy is followed.").
245. See, e.g., United States v. Claiborne, 870 F.2d 1463, 1467 (9th Cir. 1989) (holding that random assignment of judges is not constitutionally required); United States v. Edwards, 39 F. Supp. 2d 692, 707 (M.D. La. 1999) ("It is also well-settled that a defendant does not have the right to have his case heard by a particular judge. Nor does a defendant have the right to have his judge selected by a random draw." (footnotes omitted));
246. United States v. Keane, 375 F. Supp. 1201, 1204 (N.D. Ill. 1974), aff'd in part, rev'd in part on other grounds, 522 F.2d 534 (7th Cir. 1975) ("[D]ue process does not accord [the defendant] a right to have a judge assigned to his case on a random basis.").
247. See, e.g., FIRST CIRCUIT COURT OF APPEALS, INTERNAL OPERATING PROCEDURES § D (2006) (providing that "cases are assigned to panels on a random basis provided, however, that a case may be assigned to a particular panel or to a panel including a particular judge" when circumstances such as availability of judges or scheduling changes so require);
248. see also Brown & Lee, supra note 86, at 1041-42 ("[While] all federal circuits purport to rely on the random assignments of judges to panels ... substantial amounts of discretion erode the randomness of those systems." (footnotes omitted)).
249. See, e.g., United States v. Claiborne, 870 F.2d 1463, 1466 (9th Cir. 1989) ("[U]nder both [28 U.S.C] § 291(a) and § 46(b), the chief judge retains a great deal of discretion in deciding when out-of-circuit judges are needed.").
250. For example, the Fourth Circuit, where George clerked during the 1992-93 term, had developed a practice of holding simultaneous summer sessions in various locations throughout the five states in this mid-Atlantic circuit. This allowed the court to have contact with various parts of the circuit and also allowed some judges to sit closer to home. In the 1980s and 1990s, one such location was Wilmington, North Carolina, where Judge Samuel J. Ervin III had a beach home. Judges Francis D. Murnaghan, Jr., James M. Sprouse, and J. Dickson Phillips, Jr. sat with Judge Ervin in Wilmington. All four judges were appointed by President Carter. By 1996, when Ervin's chief judgeship ended, the majority
251. Cf. Neil A. Lewis, A Court Becomes a Model of Conservative Pursuits, N.Y. TIMES, May 24, 1999, at Al (discussing the Fourth Circuit's movement to "become the boldest conservative court in the nation" since Wilkinson became chief judge).
252. Wald, supra note 91, at 1129.
253. CHIEF CIRCUIT JUDGES' DESKBOOK, supra note 83, at n-27.
254. As J. Woodford Howard, Jr. observed in his careful study of three circuits: Policy leadership, that is, influence in deciding cases and developing legal doctrine, is officially divorced from administration .... The trouble is that the attempted divorce of administration from policy making seldom succeeds in most organizations. Merely to recite the managerial tasks of chief judges is to cast doubt on the distinction in Courts of Appeals as well.
255. HOWARD, supra note 32, at 225-26.
256. CHIEF CIRCUIT JUDGES' DESKBOOK, supra note 83, at 16-17.
257. Chief judges frequently make speeches and publish articles on such subjects. See, e.g., Proctor Hug, Jr. & Carl Tobias, A Preferable Approach for the Ninth Circuit, 88 CAL. L. REV. 1657 (2000) (critically evaluating two official Ninth Circuit reorganization plans under consideration by Congress);
258. Lumbard, supra note 48, at 31-41 (offering his views on a range of initiatives to reduce federal caseloads, including curtailing jurisdiction, creating two-judge circuit panels and specialized courts of appeal, increasing summary dispositions, imposing penalties for frivolous appeals, and implementing staff increases).
259. Prettyman, supra note 115.
260. See, e.g., Jason J. Czarnezki & William K. Ford, An Empirical Analysis ofDissensus on the United States Courts of Appeals 10, 16-17 (Marquette Univ. Law Sch. Legal Studies, Working Paper No. 06-31, 2007), available at http://ssrn.com/abstract-914409 (remarking on the assumption that "the chief administrator of a circuit may play an important role in promoting agreement on the court," but finding little statistical evidence that the length of a chief judge's tenure is associated with higher rates of agreement).
261. BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT 22 (paperback ed. 2005) ("As spokesman for the Court of Appeals, as its senior judge and chief administrator, Bazelon was able to assign extra law clerks, and control the office space, supplies and accouterments that make working conditions a pleasure or an annoyance. His influence with his colleagues, and especially the new judges, was legendary.").
262. Id.;
263. see also GREENHOUSE, supra note 118, at 24 (describing Bazelon as Burger's ideological "nemesis").
264. For information on state supreme courts, see National Center for State Courts, State Court Structure Charts, http://www.ncsconline.org/D_Research/ Ct_Struct/Index.html (last visited Dec. 27, 2007).
265. See Wald, supra note 91, at 1128 (reasoning that "[p]opular election by one's colleagues, or even appointment by the President, could add a disruptive element of competitiveness or even a political coloration to the job" and that therefore "[s]eniority probably does work best").
266. Compare Barrow & Zuk, supra note 66, at 466-67 (concluding that the political affiliation of the President had a small but statistically significant effect on judicial turnover),
267. and David C. Nixon & J. David Haskin, Judicial Retirement Strategies: The Judge's Role in Influencing Party Control of the Appellate Courts, 28 AM. POL, Q. 458, 458 (2000) (arguing that "[t]he only important strategic political consideration . . . is whether a judge contemplating retirement faces an opposing party president and how far off that president's next election is"),
268. with Yoon, supra note 58, at 177 (concluding that judicial pensions are the primary explanation for judicial vacancies and that political factors appear to be nonsignificant).
269. See also Spriggs & Wahlbeck, supra note 66, at 578-79 (finding that pensions as well as political environment influenced judicial turnover).
270. See, e.g., Barrow & Zuk, supra note 66, at 466-67.
271. See Yoon, supra note 67, at 1051 n.77 (positing that Democrat-appointed judges hoping for a successor of the same political affiliation may have remained longer on the bench in order to wait for a change in political affiliation in the Republican-dominated White House).
272. For judges who are exactly sixty-three or younger, the midpoint is three and a half years. For judges who are between sixty-three and sixty-five, the midpoint ranges from 3.5 to 2.5 years.
273. See generally Pinello, supra note 44 (offering an extensive analysis of the use of party affiliations of judges and party of the appointing President as proxies for judicial ideology, and confirming that both are dependable measures of it).
274. Because most judges, in contrast to elected policymakers, have not disclosed their policy preferences publicly, a proxy for attitudes is necessary. Attitudinal studies have demonstrated that the ideological direction ("liberal" or "conservative") of the party of a judge's appointing President is a strong predictor of the case votes of Justices on the Supreme Court and judges on Courts of Appeals. See, e.g., George, supra note 16, at 1678-86 (discussing studies that report these findings and also demonstrating that the majority of Fourth Circuit judges participating in en banc cases between 1962 and 1996 voted their sincere policy preferences as measured by the party of their appointing President).
275. See generally Micheal W. Giles, Virginia A. Hettinger & Todd C. Peppers, Measuring the Preferences of Federal Judges: Alternatives to Party of the Appointing President (June 11, 2002) (unpublished manuscript, on file with author) (creating and defining the common space measure);
276. Lee Epstein, Andrew D. Martin, Jeffrey A. Segal & Chad Westerland, The Judicial Common Space, 23 J.L. ECON. & ORG. 303 (2007) (refining and expanding the measure).
277. See also Micheal W. Giles, Virginia A. Hettinger & Todd Peppers, Picking Federal Judges: A Note on Policy and Partisan Selection Agendas, 54 POL. RES. Q. 623 (2001) (employing judicial decisionmaking in the U.S. Courts of Appeals as a window through which to reexamine the politics of selection to the lower courts).
278. This vote-based ideology score for senators is known as the NOMINATE score and is widely used in Congressional research. See KEITH T. POOLE & HOWARD ROSENTHAL, IDEOLOGY AND CONGRESS 295-311 (2d rev. ed. 2007) (providing examples of various applications of the NOMINATE score);
279. see also KEITH T. POOLE & HOWARD ROSENTHAL, CONGRESS: A POLITICALECONOMIC HISTORY OF ROLL CALL VOTING 233-51 app.A (1997) (explaining and testing the NOMINATE measure of the preferences of members of Congress). The NOMINATE data and related information are available at Keith T. Poole's Voteview website, http://voteview.com/default.htm (last visited Dec. 27, 2007).
280. The ideological preferences in some instances may be subtle within a given party. For example, on January 24, 2008, Chief Judge Douglas H. Ginsburg announced that he would step down effective February 10, 2008, before the expiration of his term on July 15, 2008. See Press Release, supra note 29. Ginsburg's decision means that the next chief judge will be Judge David B. Sentelle, rather than Judge Karen L. Henderson. Had Ginsburg completed his remaining months as chief judge, Sentelle would have turned 65 during that time and therefore would have been been ineligible to become chief judge. Both Ginsburg and Sentelle were appointed by President Ronald Reagan, in 1986 and 1987 respectively, and both have JCS scores of 0.567. Judge Henderson was appointed by President George H.W. Bush in 1990 and has a JCS score of 0.410. Ginsburg's early departure is after the end of our data; thus, it is not included in our statistical analyses. Its inclusion, however, would not have resulted in statistically significant results for the JCS measure in our multivariate model.
281. See HOWARD, supra note 32, at 228 ("Whether [interviewed] members [of a specific court] agree on 'strategic premises' has much to do with the influence of chief judges on legal policy. For example, Simon E. Sobeloff, the able chief judge of the 4th circuit, lacked majority support for vigorous desegregation which Elbert P. Tuttle enjoyed in the 5th." (citation omitted)).
282. See, e.g., MALTZMAN, SPRIGGS & WAHLBECK, supra note 63, at 52-55 ("[Justices' decisions result from the pursuit of their policy preferences within constraints that stem from the collegial nature of the institution,").
283. See Albert H. Yoon, As You Like It: Senior Federal Judges and the Political Economy of Judicial Tenure, 2 J. EMPIRICAL LEGAL STUD. 495, 509-10, 545 (2005) (reporting a relationship between pension eligibility and retirement from active status).
284. The 125 chief judges who served from 1948 through 2006 include eight white women, five African-American men, and one Hispanic man. By comparison, sixty women, thirty AfricanAmericans, and fifteen Hispanics have served as circuit judges. See the Federal Judicial Center database, supra note 10, for a biographical directory of all federal judges who have served since 1789.
285. A complete list of all chief circuit judges through 2006 is included as Table 6 in the Appendix. See infra pp. 56-61.
286. See Federal Judicial Center, supra note 10. We do not include Period 1 chief judges in our multivariate analysis because term limits were not yet in place.
287. For example, the FJC records the first and last year of service, but does not record the specific date on which service began or ended. Thus, a judge who became chief on January 1, 2006 would have the same starting year as a judge who became chief on December 31, 2006. This simplification makes it difficult to determine whether a judge completed her full term and to tie the timing of departure to time-sensitive variables like court composition. To fill this gap and others, we relied on multiple sources. The Sixth Circuit reports on its exceptional website specific starting dates for all chief judges in the history of the Sixth Circuit courts. See History of the Sixth Circuit, Judges Index, http://www.ca6.uscourt8.gov/lib_hist/jdge-indexA-D.html (last visited Dec. 28, 2007). A 1970 FJC publication included specific dates for chief circuit judges up to that date, as do biographies of some individual chief judges. For the hundreds of remaining judges, we relied upon Janet Hirt of the Vanderbilt Law Library. Ms. Hirt contacted each court clerk's office directly, requesting the information. We are deeply indebted to Ms. Hirt as well as the individual federal court staff members who assisted us.
288. We treated a judge as stepping down due to senior status if she took senior status within one month after stepping down from the chief judge position.
289. We also examined the relationship when using JCS scores and found a similar trend. Because scores are not available for the entire time, we chose to use party for the purpose of these figures.
290. For a discussion of survival models (also known as hazard or duration models), see Janet M. Box-Steffensmeier & Bradford S. Jones, Time is of the Essence: Event History Models in Political Science, 41 AM. J. POL. SCI. 1414, 1418-21 (1997).
291. See also Zorn & Van Winkle, supra note 65, at 160 (employing hazard models to identify factors that influence the departure of Justices from the U.S. Supreme Court).
292. For a discussion of linear regression models, see JOHN FOX, APPLIED REGRESSION ANALYSIS, LINEAR MODELS, AND RELATED METHODS 15-23, 85-94 (1997).
293. For a discussion of probit models, see JOHN H. ALDRICH & FORREST D. NELSON, LINEAR PROBABILITY, LOGIT, AND PROBIT MODELS 30-83 (1984).
294. Several of the controls-gender, months as chief judge, and pension qualification-were statistically significant in most of the model estimations.
295. Party is based on the party of the President who appointed the judge to the circuit court.
296. A chief judge who steps down when the successor is of the same party is 17% less likely to have completed her term. The probability of completing a term, however, is only 12%.
297. The docket increased 30% from 143 to 204 cases for the three active judges on the First Circuit. This was the largest single-year increase that this Circuit had ever experienced. Interestingly, the next largest - 28% in 1971 - was soon followed by Woodbury's successor's departure from the position. We see a similar phenomenon on the Third Circuit where Judge William Hastie served as chief for only twenty-five months, departing shortly after the largest increase in circuit history: 36% in a single year.
298. The correlation coefficient for average caseload per judge and percent of term completed is -0.98, and for average caseload per judge and years as chief is -0.833.
299. To quote Syndrome from THE INCREDIBLES (Walt Disney Pictures 2004): "Everyone can be super. And when everyone's super . . . no one will be. Ha, ha, ha, ha . . . ."