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Policy Preferences, Presidential Appointments, and Long-Term Influences on the Federal Courts of Appeals

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Policy Preferences, Presidential Appointments, and Long-Term Influences on the Federal Courts of Appeals POLICY PREFERENCES, PRESIDENTIAL APPOINTMENTS, AND LONG-TERM INFLUENCES ON THE FEDERAL COURTS OF APPEALS by TODD A. COLLINS (Under the direction of SUSAN B. HAIRE) ABSTRACT The United States Courts of Appeals decides thousands of cases each year and is rarely overturned by the U.S. Supreme Court. As these judges possess life tenure, appointments provide presidential administrations with a significant opportunity to influence, at least indirectly, public policy for decades after the president leaves the White House. This dissertation examines this possible presidential influence in four ways. First, in examining appointee tenure, this dissertation finds that those administrations that specifically consider the age of the appointee are generally successful in selecting judges that serve for longer periods than those administrations that apply an age-neutral approach. Second, in examining the abilities of presidents to influence the composition of the courts’ personnel, presidents have been very successful in creating or strengthening their party’s majority presence on the bench. Five out of seven administrations that had the opportunity to shift the partisan majority of judges on the circuits were able to do so. In the individual circuits, presidents create a new majority for their party in about two circuits per four-year term. Presidents are also able to create circuits with a majority of their own nominees at the rate of about two circuits per four-year term. A presidential-cohort majority will generally be maintained for about six years after the president leaves office. Third, using logistic regression, this dissertation finds that appointees behave in ideologically consistent ways with the appointing president’s policy preferences, particularly in the first decade of their careers. This means that the more liberal the appointing president’s preferences are, the more likely their judicial appointees will support liberal case outcomes, at least early on in the judges’ careers. Lastly, this dissertation examines voting records of the Carter Administration’s appointments and finds that the Carter appointees are among the most consistent in their voting behaviors in civil rights cases overtime. These findings suggest presidents have a significant opportunity to shape the courts and the public policy that stems from those courts. Depending on many factors outside of the president’s control, an administration can expect to influence the circuit courts for about a decade after they leave office. INDEX WORDS: U.S. Courts of Appeals, Appointments, Judges, Presidential Powers, Circuit Courts, Nominations, Federal Courts POLICY PREFERENCES, PRESIDENTIAL APPOINTMENTS, AND LONG-TERM POLICY INFLUENCE IN THE FEDERAL COURTS OF APPEALS by TODD A. COLLINS B.A., University of North Carolina at Chapel Hill, 1997 J.D., University of North Carolina at Chapel Hill, 2000 A Dissertation Submitted to the Graduate Faculty of The University of Georgia in Partial Fulfillment of the Requirements for the Degree DOCTOR OF PHILOSOPHY ATHENS, GEORGIA 2007 © 2007 Todd A. Collins All Rights Reserved POLICY PREFERENCES, PRESIDENTIAL APPOINTMENTS, AND LONG-TERM INFLUENCE IN THE FEDERAL COURTS OF APPEALS by TODD A. COLLINS Approve: Major Professor: Susan B. Haire Committee: John Maltese Teena Wilhelm Jeff Yates Electronic Version Approved: Maureen Grasso Dean of the Graduate School The University of Georgia August 2007 ACKNOWLEDGMENTS I wish to thank my wife and family for their continued support and understanding during the many long hours devoted to this project. I also would like to thank Dr. Susan Haire for her continual guidance in this and many other projects during my time at the University of Georgia. Also a special thanks to Dr. Jeff Yates for his help and advice, both in conducting this and other research and on making the transition from the legal profession to the world of academia. Thank you to Dr. John Maltese for his assistance, even during his busy schedule of putting together the Carter Conference. A thank you also to Dr. Teena Wilhelm who took time out of her busy schedule and to agree to help in the later stages of this dissertation. And, of course, a very special thank you to Dr. Susette Talarico who also was a role-model, both professionally and personally. She will be deeply missed by everyone and, even though they will not realize it, future graduate students’ experiences will be greatly diminished by her absence. iv. TABLE OF CONTENTS ACKNOWLEDGMENTS..............................................................................................................iv TABLE OF CONTENTS.................................................................................................................v CHAPTER I. INTRODUCTION………………………………………………………………...1 II. PRIOR ASSESSMENTS OF PRESIDENTIAL INFLUENCE...........................11 III. LONG-TERM PRESIDENTIAL INFLUENCE ON THE CIRCUIT COURT: LONGEVITY OF CIRCUIT COURT PERSONNEL...........................................19 IV. PRESIDENTIAL INFLUENCE ON CIRCUIT COURT COMPOSITION........34 V. JUDICIAL BEHAVIORS, PRESIDENTIAL POLICY PREFERENCES, AND IDEOLOGICAL CONCORDANCE..............................66 VI. PRESIDENT CARTER’S CIRCUIT COURT APPOINTMENTS.....................153 VII. CONCLUSIONS, LIMITATIONS AND FURTHER RESEARCH.........................................................................................................170 REFERENCES AND CASES CITED........................................................................................179 APPENDICES A. TIMELINE EXAMPLE DEPICTING CHANGES IN THE FIRST CIRCUIT COURT OF APPEALS.....................................................190 B . LISTING OF CASE TYPES USED CHAPTER 5 LOGISTIC REGRESSION MODELS..........................................................195 v. CHAPTER I INTRODUCTION In June of 2003, a three-judge panel from the Ninth Circuit Court of Appeals issued a ruling that involved one young student, one school district, and a recited statement that takes less than ten seconds to complete. In reality, only two individuals actually issued the binding opinion, as one member of the panel dissented. Further, the opinion concerned only two spoken words that took up only about one second’s worth of the school day. In the “big picture” world of United States’ politics, one would imagine that a decision involving one second of a school day and two spoken words would be rather insignificant. Further, in our system based in majority rule and legislative compromise, most would consider a decision emanating from only two individuals, neither of which is the president, to be fairly unimportant. One would think this case would be decided in obscurity, largely out of the public’s eye. However, this case, just like many decided by the lower courts, did not go unnoticed. In fact, the Ninth Circuit’s 2003 ruling that the phrasing “under God” in the Pledge of Allegiance violated the Constitution 1 created a storm of controversy across the nation (Collins 2004). While some groups applauded the case as protecting society from the government’s establishment of religion, others strongly criticize the decision as unpatriotic and that it ignored the foundations of the nation. While a decision either way may have been controversial, this decision focused national attention on not only the Pledge of Allegiance, but also on the general role of the courts, politics, and religion. For example, reacting to the Ninth Circuit’s decision, the U.S. Senate 1Newdow v. United States Congress, 292 F.3d. 597 (9 th Cir. 2002) amended by 328 F.3d 466 (9 th Cir. 2003). voted ninety-nine to zero in favor of the “under God” phrasing (Reaves 2002). Adding to this debate was the fact that Judge Alfred Goodwin, a Nixon appointee, wrote the majority opinion. This seemed contradictory for a Nixon appointee, as Nixon implemented a clear agenda aimed at nominating conservative judges and justices to offset what he viewed as the liberal decisions of the Warren Court (Goldman 1997). However, Nixon appointed Goodwin to the Ninth Circuit Court of Appeals in 1971, and Goodwin wrote this opinion over two decades after his appointment to the bench and years after President Nixon left political office. Although it did not rule on the merits of the Ninth Circuit’s decision, in this instance the U. S. Supreme Court did agree to hear this case.2 However, the Court’s decision to grant certiorari in this case is the exception to the general rule. Thousands of cases decided in the U.S. Courts of Appeals never make it to the High Court for review. For example, in 1992, the U.S. Court of Appeals for the Seventh Circuit decided that the “under God” phrasing was constitutionally permissible.3 Unlike the Ninth Circuit decision, the Supreme Court declined the opportunity to review this case, just as it declines to review the vast majority of cases. In recent years, the United States Supreme Court has given its full attention to less then one-hundred cases per term (Segal and Spaeth 2002). With discretionary review and control over its own dockets, the number of opinions issued by the Supreme Court has decreased over several decades, even though the requests for review of lower court decisions have sharply increased. Conversely, the Federal Courts of Appeals, also called the circuit courts, lack discretionary review (Cohen 2002; Klein 2002). Further, the number of cases appealed to the circuits has dramatically increased in recent decades (Songer, Sheehan, and Haire 2000). For example, in 2006 over 67,000 cases
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