Vol. 10 No. 2 (February 2000) pp. 162-164.

JUDICIAL POLITICS IN THE D. C. CIRCUIT COURT by Christopher P. Banks. Baltimore: The Johns Hopkins University Press, 1999. 180 pp.

Reviewed by Susan Haire, Department of Political Science, University of Georgia.

The U.S. Court of Appeals for the District of Columbia has long been a forum for resolving important questions of legal policy. A quick perusal of administrative law casebooks typically yields more cites to decisions of the D. C. Circuit than to those of any other court. Despite the proliferation of important precedent from this court, relatively less is known about the dynamics of decision making in the D. C. Circuit. An increasing number of studies continue to report findings that build on our knowledge of the bases of judges' decisions in the U.S. Courts of Appeals more generally. However, the applicability of these findings to the D. C. Circuit may be limited because of this court's unique docket and a judicial selection process unencumbered by senatorial courtesy. As a result, closer scrutiny of this court merits scholarly attention. In JUDICIAL POLITICS IN THE D. C. CIRCUIT COURT, Christopher Banks contributes to this line of inquiry by offering readers a rich descriptive account of those influences that have shaped the agenda and decision making in this circuit.

The organization of the book acknowledges the importance of both the court's history and role in the judicial hierarchy. The initial chapter presents the highlights of the most significant events in the D. C. Circuit since its inception until the "due process revolution" of the 1960's. In Chapter 2, the story of this court begins to unfold in more detail with a discussion of the controversy created by the circuit's period of "liberal activism" in criminal law. Chapter 3 traces the evolution of the court into
the leading circuit in administrative law during the 1970's and '80's. The effect of institutional features on the circuit's caseload and decision making are discussed in the fourth chapter with a concluding note on the D. C. Circuit's future in the final chapter.

The introductory chapter summarizes the history underlying the federal courts' organization and chronicles the development of the D. C. Circuit from a court originally focused on local concerns to a forum devoted to national legal policy issues. This shift was initiated in the mid-1950s when substantial scholarly attention was directed at another Washington D. C. court noted for its decisions dealing with the rights of criminal defendants. Interestingly, this account documents how D. C. Circuit decisions in criminal law were not simply extensions of Supreme Court doctrine during the 1950's and '60's. The author identifies several factors that contribute to this important policy role. First, he demonstrates how the composition of the court's docket created an opportunity for the circuit to establish precedent
in criminal law. Second, he notes that its activism was fueled by the formation of a solid voting bloc (Judges Bazelon, J. Skelly Wright, Fahy, Edgerton, and Robinson) and the selection of David Bazelon as chief judge in

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1962. Finally, he describes the infrequent and selective oversight provided by the Supreme Court in criminal cases.

The second chapter extends the analysis of the D. C. Circuit's role in criminal law. The emphasis shifts, however, to an examination of reaction by public officials to the liberalism of the court. In particular, this chapter details the passage of the D. C. Circuit Crime Bill in 1970 and characterizes it as a "stunning partisan success in the battle against liberal judicial politics" (p. 26). Although the legislation effectively removed most criminal cases from the jurisdiction of the D. C. Circuit, the prominence of the court does not diminish but shifts in subject matter as a response to the rising number of regulatory appeals. The remainder of this chapter describes how the D. C. Circuit finds it niche again as a "mini" Supreme Court in administrative law. The role of the court in the development of principles
governing judicial review of agency action is outlined with particular attention given to the controversy surrounding the hard look doctrine.

Judicial review of agency decisions is incorporated into the theme of the third chapter: "judicial politics". The policy consequences of numerous Reagan appointments to the D. C. Circuit are well-documented in this section. The rise of intra-circuit conflict coupled with protracted agency litigation fueled the politicization of the D. C. court during the 1980's. The evidence in support of this characterization is fairly convincing as the author describes the deep divisions among judges who decided appellate litigation dealing with CAFE ("corporate average fuel efficiency standards") standards. Following an interesting discussion of the potential liberating
effect of CHEVRON v. NATURAL RESOURCES DEFENSE COUNCIL (1984), an analysis of agency deference is presented with data on affirmance rates across circuits. Comparing the affirmance rates from pre- (1980-1984) to post-CHEVRON (1985-1989), the author concludes that the Supreme Court decision contributed to greater deference to the agency position in most circuits. As the text points out, however, this inference is limited in that judicial review of agency decisions may be the product of a "complex interaction of a number of diverse ideological and legal considerations. . . including the political composition of a panel deciding a case, the ideological direction of the agency policy under review..." (p. 85).

In this passage, like many others, the author recognizes the problem of relying on descriptive statistics to assess "multivariate" questions. Much of the analysis is drawn from data compiled from annual reports of the Administrative Office of the Courts. Readers like myself may wish that other analytical techniques and data sources had been used to test these premises more systematically. Data sources, such as the Multi-User Database on the U.S. Courts of Appeals and the AO Database (available at ICPSR), would have strengthened the empirical base for analysis. They also would have permitted the test of micro-level questions raised by the author, including whether partisan differences existed among judges, whether these differences changed over time, or even whether case factors influenced the review of administrative appeals. Multivariate analysis would have offered additional insight on several questions, such as whether or not the pre- and post-CHEVRON difference remained after controlling for the ideological composition of reviewing

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panels. To be fair, it should be emphasized that the author clearly acknowledges the limitations of the data analysis and does not draw conclusions that go beyond the data presented.

The fourth chapter of the book serves as an important reminder that the U.S. Courts of Appeals are twelve distinct courts (or thirteen, depending on whether you include the Federal Circuit). Here, the analysis documents the varying use of en banc dispositions by circuits with the D. C. court more likely to utilize full court review when compared to other courts in the 1970's, '80's, and '90's. Moreover, this analysis suggests that the divisions among D. C. judges during the 1980's were exacerbated by en banc review that the conservative majority used as a check on liberal panels. The author also presents evidence that decisions of the full court are generally the "final word" of the circuit with only four of sixty-one en banc dispositions decided from 1981-1990 being reversed or vacated by the Supreme Court. This analysis of the judicial hierarchy supports the findings of existing studies that indicate High Court review to be infrequent overall.

Since the actual threat of upper court review is remote, this work raises questions about the applicability of hierarchical influences in circuit court decision making. For example, are D. C. Circuit judges responding to signals from the Supreme Court, even though the potential for review is unlikely? Are judges in this circuit concerned about reversals? Additional research will be necessary to test these questions, but this work and recent observations of the Ninth Circuit suggest that circuit norms and practices may condition hierarchical relationships.

In the final chapter, Banks discusses the question of whether the organization of the federal court system should change to recognize formally the administrative law specialization of the D. C. Circuit. For those who are interested in court reform efforts, this chapter provides an overview of recent developments complete with suggestions for research in this area.

JUDICIAL POLITICS IN THE D. C. CIRCUIT COURT offers readers ahistorical profile of policy making by this court during a period marked by political turmoil. Additional research, particularly empirical studies, will help to fill in the details suggested by that profile. Although some readers may be disappointed with the empirical analyses presented in this book, others will be satisfied to learn more about the "character" of the D. C. Circuit over the last thirty years. In addition, this work should encourage other courts of appeals' scholars to pursue approaches that recognize the importance of institutional history in developing our understanding of the dynamics of policy making within and across circuits.



Copyright 2000 by the author