Vol. 6 No. 12 (December, 1996) pp. 191-193.
THE FEDERAL JUDICIARY AND INSTITUTIONAL CHANGE by Deborah J. Barrow, Gary Zuk, and Gerard S. Gryski. Ann Arbor: University of Michigan Press, 1996. 143 pp. Cloth $39.50.
Reviewed by Ronald Stidham, Department of Political Science/Criminal Justice, Appalachian State University.
When Ulysses S. Grant became president in 1869 the number of federal judges stood at 61. Since that time, the number of jurists on the lower federal judiciary (district courts and courts of appeals) has increased at what some consider an alarming rate. What has caused this tremendous growth and what are its implications? These are questions with which the authors grapple in this important new book.

Barrow, Zuk, and Gryski go about their task by "deciphering the institutional arrangements for and the politics of staffing the bench" (p. 1). In doing so, they provide the first systematic study of the organizational development of the modern lower federal court system. The influence of presidents, Congress, and judges themselves are analyzed to determine their influence on the institutional characteristics and membership of the lower federal courts. Change is assessed over a period from 1869-1992 and, more specifically, during three historical sub-periods: 1869-1932; 1933-1968; and 1969-1992. These three time periods correspond to years which saw the political landscape dominated by one political party. The total time period, spanning 62 congresses and 24 presidential administrations allows the authors to assess the impact of both unified and divided government on the institutional features of the federal judiciary.

The evolution of the lower federal judiciary is basically "attributable to two types of change agents--structural and political" (p. 5). Simply put, structural changes derive from the authority of each of the three branches to alter the size, framework, and membership of the judiciary. On the political side, the changing lower federal judiciary is examined in the context of divided vs. unified government.

In chapter two the authors describe their database, the most extensive of its kind. The unit of observation is an appointment so there are second records for those judges elevated to higher courts or positions. For each appointee the authors coded the following information: name; month and year of appointment; date of birth and death; political party; appointing president; level of court; district (for judges in states with more than one district); state; circuit; type of appointment (new seat or replacement); whether it took the form of an elevation, and, if so, the president who appointed the judge to the district bench; the appointee's predecessor (if a replacement position); party affiliation of home-state senators and control of government (unified vs. divided) at time of appointment; and month, year, and reason for leaving (death, retirement, resignation, elevation, failed confirmation, impeachment, termination of position, transfer). According to the authors, there is virtually complete information on the 2,514 lower federal judges appointed from 1869-1992 and the 1,821 who left office. (Editorís Note: The data are available from the Interuniversity Consortium for Political Research.)

Chapter two also provides an overview of the lower federal judiciary from 1869, when the complement of circuit judges became permanent, to 1992. The beginning year of the study also marks the time when a stable two-party system took root in the United States. Throughout the period under study the lower federal bench has had a decidedly Republican look, no matter how one measures it. Republican presidents made 60.3 percent of all the appointments and 58.2 percent of all the judges were members of the Republican party. These figures confirm the obvious--over 90 percent of all those nominated for a judgeship are members of the president's party. Opposite-party appointments are likely to come when presidents are politically vulnerable, situations that occur when their party does not control the Senate, when they suffer from low public esteem, and near the end of their term.  Less well-known, but equally important, are the authors' findings concerning the expansion of the lower federal judiciary. At the close of the 40th Congress in 1868 the judiciary was 21 percent the size of the legislative branch. By 1992 it had grown to an institution 50 percent larger than Congress. Such dramatic change is a function of three things: bench expansion, replacements created by voluntary and involuntary departures, and elevations.

Historically, the authors found that about one of every three appointments was made to fill a new seat (p. 17). Interestingly, the proportion of all appointments coming from new judgeships was 44 percent higher for Democratic occupants of the White House. Since most of the new seats on the bench came from omnibus legislation (a practice which began in 1922) and since Democrats controlled both houses of Congress about 70 percent of the time between 1922 and 1992, it is easy to see why this was the case.

Appointment opportunities also result from being able to replace a departing judge. Some judges leave voluntarily by either resigning or retiring. Historically, resignations have accounted for only 37 percent of those leaving the bench voluntarily. By contrast, retirements account for about two-thirds of the voluntary turnover. Like appointments, retirements are partisan in nature. Almost 70 percent of all the retirees left the bench during a Republican presidency.

One out of every five judges died in office. However, the authors note that the myth of life tenure is dispelled in the modern era (p. 20). In the first sub-period (1869-1932) deaths accounted for one-third of all appointment opportunities. This figure declined to 23 percent in the second sub-period (1933-1968) and to 8.7 percent in the third sub-period (1969-1992). By the last era, then, the most significant source of appointment opportunities was found in resignations, retirements, and elevations.

In chapter three the authors offer an in-depth analysis of the changing federal judiciary from 1869-1932, the era of the first Republican hegemony. During this period the size of the federal judiciary grew dramatically as new states and territories entered the union. Additionally, rising caseloads and the increasing complexity of legal issues fueled a demand for new courts. Legislation passed in 1922 added 24 new district court judgeships and established the practice of periodic omnibus increases in personnel. Equally important, however, the legislation created the Judicial Conference of the United States. This organization provided a structure and a process for recommending new judgeships and allowed the judiciary itself to take the lead in such proposals.

Chapter four deals with the years 1933-68, a period politically dominated by the Democratic party. When Franklin D. Roosevelt came into office about four out of every five judges on the lower federal bench were Republicans. By the conclusion of Lyndon Johnson's presidency, however, 70.5 percent of the seats on the lower federal courts were occupied by a Democrat.

The number of new districts and circuits, which had increased considerably during the previous period, changed little from 1933-68. However, federal courts and judges did increase dramatically. In 1933 there were 181 permanent lower court judgeships. That number had more than doubled (to 432) by the time Johnson left office. Thus, 251 judgeships came to the Democrats by way of omnibus judgeship legislation. All eight of these measures were passed during periods of unified government.  Not surprisingly, Eisenhower had to rely more heavily upon voluntary turnovers for opportunities to appoint judges. The four Democratic presidents serving in this period also relied on voluntary turnovers for appointment opportunities. In fact, Barrow, Zuk, and Gryski note that since 1933 voluntary turnover is the chief source of appointment opportunities (p. 58). It is also important to note that 57 percent of those relinquishing their seats on the bench did so during an administration run by their party. Congress provided a major incentive to voluntarily relinquish a judgeship by providing an attractive retirement package. All things considered, the authors note that it has become clear since the turn of the century that the party which controls the White House "ultimately controls the federal bench as well, regardless of whether government is unified or not" (p. 62).

In chapter five the authors turn to the years 1969-92, a period they describe as an age of divided government. During this time all the presidents except Gerald Ford exhibited considerable success in making an imprint on the bench. Reagan, of course, earned the title of contemporary court packer. When he entered office fewer than 40 percent of the lower federal judges were Republican. That figure had increased to 61.2 percent eight years later. During this period, however, two other presidents converted a partisan minority on the bench to a majority. A fourth (Bush) extended one, and yet another (Nixon) almost attained one.

Carter's appointment efforts were, of course, greatly aided by a Democratic president's greatest friend, an omnibus judgeship bill. Public Law 95-486 gave him 35 new appellate and 117 new district judgeships, the largest increase ever. Republican presidents had to depend more on voluntary turnover and elevations. Indeed, the percentage of all vacancies brought about by resignation or retirement reached 74.4 percent during the 1969-92 period.
 The final chapter does a nice job of tying everything together and summarizing the book's major findings. The authors also raise interesting questions that must be faced in the future. One such question is whether we should cap the size of the federal judiciary at 1,000 judges. Another deals with the question of whether the omnibus approach, and its attendant problems of delay in filling positions, meets the needs of the judiciary. Finally, the recent increase in voluntary departures raises concerns which must be met.

Such a short review cannot do justice to this important addition to the literature on federal courts. It is a well-organized, well-researched, and well-written book. Numerous tables and figures are used to help present the material in a straightforward, readable fashion. Extensive notes are also provided. I highly recommend it to students and established scholars alike.

Copyright 1997