Why have appointments to the lower federal courts become so politicized in the modern era? Scherer's answer is that senators who once dispensed judicial appointments as political patronage now face mobilized elites who demand that lower court judges share their ideology. She deploys diverse methodological approaches to develop her argument: statistical analyses of judicial cohorts' decisions, interviews with activists, an analysis of legislative rules and practices, and an examination of campaign rhetoric and strategies. While Scherer situates her study squarely in the context of American politics and political science, the book has much to teach specialists in the politics of judicial selection.
Two huge political changes precipitate the change: the decline of mass parties (and candidates' concomitant dependence on elites to mobilize voters) and the increased importance of federal courts. First evidenced by President Lyndon Johnson (not President Roosevelt), but really starting with President Richard Nixon's Southern strategy and his promise to appoint “law and order judges,” presidential candidates appeal to elites to “score points.” By examining judicial votes, Scherer demonstrates that party-polarized judicial decisionmaking did not occur until the late 1960s, but she provides strong evidence that it has occurred thereafter.
I would recommend the book for undergraduate courses in American politics, judicial politics, or even Congress. I would also recommend it for graduate courses such as judicial politics or law and policy. Scherer quotes activists effectively to reveal their strategies. The chapter on the Senate's process of judicial selection is especially informative and could stand alone. Activists looking for powerful evidence of hypocrisy in Republicans' current demands for an up-or-down vote or for the elimination of the filibuster will find plenty of ammunition. Since the demise of patronage and senatorial courtesy, senators have not been able to agree on the rules of the game—rather, they shift according to the party in power and the party of the president.
Partisans aggrieved at the framing of Democrats as distinctly obstreperous will be delighted to know that it was President Nixon who developed the ideological litmus test, and Scherer concludes that “the exploitation of the ideological litmus tests remains predominately a Republican elite mobilization strategy” (p. 6). President Bill Clinton distracted elites from his appointment of moderates by appointing women and minority men. Presidential candidate Bob Dole campaigned on the issue of lower federal court appointments most heavily, if not effectively, and Scherer carefully documents how the issue emerged, not just in presidential elections, but in campaigns for the Senate and even for governor.
I have two minor criticisms of the book. In her chapter on affirmative action, Scherer cites only one of the many empirical studies on gender differences in judging (p. 98) and goes on to claim, surprisingly, that given that study's conclusions, we should expect to find gender differences between men and women court of appeals judges and expect to see differences on the abortion issue. Although I believe abortion is a women's issue, polls do not show that men and women differ in their positions on abortion, and the parties have been realigning on this issue. Moreover, women are the most committed activists on both extremes. Overall, she finds women judges less likely than male judges to uphold abortion restrictions—the biggest differences are between men and women judges appointed by Republicans. She does not explore these intriguing findings but merely quips that she has affirmed the existence of substantive representation.
The conclusion is disappointing because Scherer fails to wrestle with the implications of her research. What should we do about the polarization over the composition of the lower federal courts? Her exclusive focus on the United States leaves her unable to draw on other jurisdictions for ideas, but neither does she look at debates over judicial selection at the state level. In her brief conclusion, she mentions Reference RosenbergRosenberg's (1993)The Hollow Hope and opines that, since he found that courts cannot produce social change in any case, maybe elites should not care so deeply about who sits on them. While law and society scholars may share some of Rosenberg's ambivalence about vesting political power in courts, they will find Scherer's failure to engage the extensive scholarly debate about legal mobilization unsatisfactory. In the end, this is a political science book rather than a law and society book, although law and society scholars should read it and will learn much from it.
