Title

Court Fixing

Document Type

Article

Publication Title

Arizona Law Review

Publication Date

2001

Page Number

9

Keywords

judges, court fixing, judicial behavior, jurisdiction

Disciplines

Courts | Judges | Law | Legal History

Abstract

This Article critically examines the existing social science evidence on the relative importance of various individual factors on judicial behavior and adds to that evidence by considering the influence of prior academic experience on judges. Researchers have not focused much attention on the importance of a judge's background as a full-time law professor and legal scholar, although more than thirteen percent of courts of appeals appointees were former law professors. Franklin Roosevelt and Ronald Reagan both viewed the federal judiciary (particularly the Supreme Court and the Courts of Appeals) as integral to their policy agendas, and both further believed that the individuals best able to fulfill their policy goals were law faculty who had demonstrated intellectual support for the president's perspective. This Article will demonstrate FDR's and Reagan's appointments of academics substantially contributed to their ultimate success in fixing the courts to adopt their respective-and sharply contrasting-perspectives on law. By selecting legal scholars, the presidents were certain as to the ideological positions or "preferences" of their nominees. Moreover, former law professors selected by such means are more likely than other judges to pursue single-mindedly their views and to seek to influence other judges and courts to adopt these perspectives. This Article pays particular attention to judges on U.S. Courts of Appeals of general jurisdiction. Franklin Roosevelt was the first president to recognize the potential importance of the circuit courts to his programs and to take an active role in the selection of lower court judges. Today, a president will, and should, focus a great deal of attention on the individuals appointed to the courts of appeals. These courts are of critical importance, because they make and interpret the law for their respective regions with little review by the Supreme Court. The sometimes controversial Ninth Circuit, for example, decides more than 9000 disputes each year with only a handful reconsidered by the Court, leaving in place the circuit's key rulings in such crucial areas as criminal law, intellectual property, and immigration rights. The Article proceeds as follows: Part I examines systematically the relative influence of personal attributes, social background, and ideological perspectives on judicial decision-making. Part II builds a theoretical model of how the academic experience could create an "individualistic" judge, one who is more active and independent than her colleagues. Part III tests empirically the hypotheses that are part of this model. The Article concludes by reflecting on the implications of the results.

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