Papers on Lower Federal Court Judicial Selection and Judicial Behavior Open Access

Nash, Jonathan (Summer 2021)

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In contrast to the bulk of the existing political science literature on American judicial politics, the papers in this dissertation focus on the lower federal courts. The first looks at federal district court, and use as a natural experiment a time period during which New York federal district judges were appointed by Senators of both parties regardless of the party of the sitting President. It examines the nomination of federal district judges, and argues that the ideology of the Senator who recommends a nominee (i) does not predict the length of time until the nomination is resolved by the Senate, but (ii) has some effect on the likelihood of ultimate confirmation. The second paper looks at the appointment of magistrate judges by federal district courts, arguing that district courts will value expertise over ideological considerations. The paper presents a model of the appointment process, and offers empirical evidence consistent with the hypothesis.  The third paper examines decision-making by judges in groups. While many commentators and judges tout the importance of collegiality in decision-making, empirical validation of that hypothesis faces the challenge of measuring collegiality. The paper offers novel measures of collegiality based on expressions of collegiality by dissenting judges towards judges in the majority. The paper validates these dissent-based measures, and then uses the databases to gather empirical data on settings where judges tend to act collegially, and the characteristics of courts that tend to be collegial.  

Table of Contents


1.    Overview.. 1

2.    Examining the Fate of Interparty Judicial Appointments. 6

2.1.    Introduction. 6

2.2     Overview of the Federal Judicial Appointment Process. 11

2.2.1      The Constitution and Federal Judicial Appointments. 11

2.2.2      The Realities, Democratic Underpinnings, and Politics of Supreme Court Appointments. 13

2.2.3      The Realities, Democratic Underpinnings, and Politics of Lower Federal Court Appointments. 15

2.3     The Arrangement Between New York’s Senators Regarding Judicial Nominations, 1977-1998. 21

2.3.1 Describing the Arrangement 21

2.3.2      Why New York’s Senators Agreed to, and Maintained, the Arrangement 23

2.3.3      Why the Presidents Acceded to the Arrangement 25

2.3.4      Assessing the Senate’s Reaction to the Arrangement 26

2.4     Empirical Analysis. 34

2.4.1      The Dataset 34

2.4.2      Likelihood of Confirmation. 41

2.4.3      Confirmation Delay. 44

2.5     Discussion of Results. 48

3.    Evaluating District Judge’s Incentives to Appoint Magistrate Judges Based on Merit Instead of Ideology. 52

3.1.    Introduction. 52

3.2.    Overview of Magistrate Judges. 54

3.2.1      A Brief History of the Office of “Magistrate Judge”. 54

3.2.2      The Role and Selection of Magistrate Judges. 55

3.3.    Literature Review.. 62

3.4.    Modeling District Court Decisions to Make Referrals of Matters to Magistrate Judges as Decision Trees. 66

3.4.1      The Basic Model 69

3.4.2      Extending the Model: Resource Constraint 81

3.4.3      Institutional Features. 83

3.4.4      Legal Features. 85

3.4.5      Informational Constraints. 87

3.4.6      Evaluating the Impact of Possible Shortcomings in the Model 88

3.5.    Empirical Analysis. 91

3.5.1      Hypotheses. 92

3.5.2      Data. 93

3.5.3      Empirical Analysis of Hypothesis 1. 97

3.5.4      Empirical Analysis of Hypothesis 2. 100

3.5.5      Empirical Analysis of Hypothesis 3. 103

3.6.    Conclusion. 104

4.    Measuring Collegiality Through the Language of Dissenting Opinions. 106

4.1.    Introduction. 106

4.2.    Theorizing Judicial Collegiality. 110

4.2.1      Divergent Theoretical Understandings of Judicial Collegiality. 111

4.2.2      Incentives and Disincentives to Behave Collegially. 115

4.3.    Dissent as a Setting in Which to Study Collegiality. 118

4.3.1      The Decision to Dissent 119

4.3.2      Expressions of Collegiality in Dissent 124

4.4     Measuring Expressions of Collegiality in Dissent 125

4.4.1      Case-Level Database. 126

4.4.2      Court-Level Database. 130

4.4.3      Validating the Measures. 133

4.5     Empirical Analysis. 135

4.5.1      Hypotheses. 135

4.5.2      Empirical Analysis of Case-Level Hypotheses. 143

4.5.3      Empirical Analysis of Comparative Court Hypotheses. 147

4.5.4      Empirical Analysis of Court-Level Hypotheses. 149

4.6     Discussion of Results. 154

4.7     Conclusion. 158

Bibliography. 160

Appendix to Chapter Three. 191

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