Academic journal article Vanderbilt Law Review

Chief Judges: The Limits of Attitudinal Theory and Possible Paradox of Managerial Judging

Academic journal article Vanderbilt Law Review

Chief Judges: The Limits of Attitudinal Theory and Possible Paradox of Managerial Judging

Article excerpt

Chief judges wield power. Among other things, they control judicial assignments, circulate petitions to their colleagues, and manage internal requests and disputes. When exercising this power, do chiefs seek to serve as impartial court administrators or do they attempt to manufacture case outcomes that reflect their political beliefs? Because chiefs exercise their power almost entirely outside public view, no one knows. No one sees the chief judge change the composition of a panel before it is announced or delay consideration of a petition for en banc review or favor the requests of some colleagues while ignoring those of others. Chiefs do exercise one very public power, however. Chiefs decide when to step down and whether to remain in active service. Because their dates of departure determine who will succeed them, they also decide who their successors will be. If chiefs are impartial administrators, their departure decisions should not lead systematically to successors who share their political beliefs; if, by contrast, they are purely political actors, their departures should be timed to ensure like-minded successors. Relying on a database that includes all chief circuit judges, we test a strategic departure theory of chief judge tenure. We find little evidence of political motivations. We find instead that chief judges serve shorter terms as dockets grow larger; thus, overwhelming workloads may prevent judges from using the office to further policy goals.

Grutter v. Bollinger is familiar to American lawyers, academics, and law students as the Supreme Court decision allowing the consideration of race in law school admissions.1 Grutter1 s procedural history is nearly as noteworthy as its substantive holding. The University of Michigan Law School, after losing in federal district court,2 appealed to the U.S. Court of Appeals for the Sixth Circuit.3 Three Democratic appointees were assigned to the panel: Judges Karen Nelson Moore and Martha Craig Daughtrey, who had heard an earlier interlocutory appeal, and Chief Judge Boyce Martin, who replaced the designated district judge from the earlier panel.4 The white applicant requested that the entire court, rather than a panel, hear the case.5 The Sixth Circuit granted the en banc petition.6 A closely divided en banc court reversed the district court in an opinion authored by Martin.7

Normally, that is all we would know about the process by which the Sixth Circuit decided the case. But something highly unusual happened. Judge Danny Boggs included with his dissenting opinion a five-page procedural appendix detailing intracourt machinations and accusing the Chief Judge of manipulating procedures to affect the outcome.8 Boggs alleged that Martin violated circuit rules by assigning himself, rather than a randomly selected judge, to the three-judge panel.9 This assertion alone does not seem very significant-the case was decided, after all, by the en banc court. Boggs's more pointed accusation was that Martin engineered the en banc voting process to ensure a court balanced in favor of the law school. When the white student petitioned for an en banc hearing, eleven active judges sat on the Sixth Circuit; two of those judges had expressed their intent to take senior status.10 Martin circulated the petition after both judges had taken senior status, making them ineligible to participate.11 Judge Alice Batchelder responded by writing an internal memo to her colleagues contending that Martin delayed the vote on the white student's request for a hearing en banc until judges opposed to affirmative action took senior status.12 Boggs's dissent made public those accusations,' a fact that one colleague called "shameful,"13 and another "embarrassing and incomprehensible."14

Accusations like those made in Grutter are consistent with the attitudinal theory of judicial decisionmaking. Attitudinal theory proffers that judges are political actors who make decisions that will maximize their policy preferences. …

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