For years the public has become increasingly disillusioned and cynical about its governmental institutions. In the face of alarming problems - most notably the $400 billion budget deficit - the government seems deadlocked, reduced to partisan posturing and bickering, with the president and Congress blaming each other for failure. And neither party can be held accountable. The public tendency is to blame individual leaders - or politicians as a class - but an insistent and growing number of experienced statesmen and political scientists believe that much of the difficulty can be traced to the governmental structure itself, designed in the eighteenth century and essentially unchanged since then. Is that inherited constitutional system adequate to meet the challenges of the twenty-first century, or has the time come for fundamental change? Should we adopt an electoral system that encourages unified control of the presidency, the Senate, and the House? Lengthen terms of office? Limit congressional terms? Abolish or modify the electoral college? Introduce a mechanism for calling special elections? Permit legislators to hold executive offices? Redistribute the balance of powers within the governmental system? In this revised edition of his highly acclaimed 1986 volume, James Sundquist reviews the origins and rationale of the constitutional structure and the current debate about whether reform is needed, then raises practical questions about what changes might work best if a consensus should emerge that the national government is too prone to stalemate to meet its responsibilities. Analyzing the main proposals advanced to adapt the Constitution to current conditions, he attempts to separatethe workable ideas from the unworkable, the effective from the ineffective, the possibly feasible from the wholly infeasible, and finally arrives at a set of recommendations of his own.

Constitutional Reform and Effective Government.

I am always amazed by newspaper reports of the way that geologists and space scientists draw complex conclusions about the origin or nature of a planet from data sent back by a probe of one tiny part of the planet's surface. They seem to have a lot of confidence in their underlying theories. The same is not true for sociolegal scholars. We don't have full-fledged theories about how legal systems actually work, and hence it seems risky to make big generalizations about a system as a whole based on a study of one or two legal institutions or processes. Making generalizations about the "law in action" for whole legal systems is especially risky if the subject is the United States, with its 50 different state legal systems, from Mississippi to Montana to Massachusetts, and with its proliferation of different kinds of courts, law enforcement bodies, police departments, administrative tribunals, and regulatory agencies, state, federal and local. Small wonder that most empirical sociolegal scholarship is relatively narrowly focused on specific legal policy areas and processes. While these case studies are immensely valuable, occasionally it seems worthwhile to use the scholarly close-ups of particular clumps of trees to draw some wide-angle conclusions, however tentative, about the shape and dynamics of the legal forest. That, however quixotic the effort, is what I sought to do in Adversarial Legalism: The American Way of Law (hereinafter AL). But just as Don Quixote needed the skeptical realism of Sancho Panza, the essays on AL in this issue, paying close attention to text, empirical detail, and analytic precision, serve as a reminder of the pitfalls attending the quest for generality. Yet I am not quite willing to don the Quixote costume. In this essay I will argue that AL, even if a bit ambitious, is reasonably realistic, and that the questions raised by the other essays raise meaningful but not

/pdf/on-surveying-the-whole-legal-forest-1torqa2m23.pdf

On Surveying the Whole Legal Forest

/pdf/administrative-law-judge-decision-making-in-a-political-3gqkdmdzhh.pdf

Administrative Law Judge Decision Making in a Political Environment, 1991 - 2007

/pdf/elevating-justice-the-strategic-elevation-of-district-court-574llfjy03.pdf

Elevating Justice: The Strategic Elevation of District Court Judges to the Courts of Appeals

The divisiveness of the lower federal court confirmation process has been the focus of extensive commentary by political pundits and scholars alike. The engine driving the controversy is the notion that who sits on the federal bench makes a difference for subsequent policy outcomes. However, while a great deal of attention has been paid to differences in the decision making of judges appointed by different presidents, virtually no attention has been paid to whether the concerns of actors involved in the process have been borne out in the behavior of nominees who were controversial at the time of their nomination to the bench (but ultimately were successful in securing confirmation). In other words, we have no rigorous, systematic evidence as to whether controversial nominees do, in fact, behave differently than other nominees once they don the black robe. Using data from 1977-2002 on nominations to the U.S. Courts of Appeals and the voting behavior of court of appeals jurists for the same period, here we empirically investigate whether judges who were considered more controversial during their confirmation process are more ideologically-driven in their voting behavior than other (less controversial) judges.

Judicial Selection and Judicial Choice

In this article, I examine whether divided government has any meaningful impact on the type of judges appointed to the lower federal courts. Specifically, I compare the voting behavior of Clinton judges confirmed before and after the Republicans took majority control of the Senate as well as the voting behavior of judges appointed by President Reagan before and after the Democrats took control of the Senate in the 1980s in order to detect whether judges appointed under divided government are more moderate than those under unified government. Believing that the Senate lacks the resources to have a meaningful impact in shaping judicial ideology on the lower federal courts-as hundreds of judges must be confirmed during the course of a presidential administration-I hypothesize that there is no difference in voting behavior between judges appointed under united and divided government. Consistent with my hypothesis, I find that there is no difference in voting behavior between judges appointed during united and divided government in three critical issue areas: search and seizure cases, race discrimination cases, and federalism cases. This was true of judges appointed during the Clinton and Reagan presidencies, and was true in all three issue areas tested. Introduction In this article I look at a discrete issue raised in the context of a larger project on the changing relationship between party politics and the lower federal courts in the modern political era (1964-2000): the effect of a divided government on judicial selection. During the Clinton presidency, the Republican Senate waged a much-publicized battle to block President Clinton's nominees to the lower federal courts, allegedly on ideological grounds: that Clinton's nominees were "judicial activists" and thus unfit to serve on the federal bench. This interparty conflict over judicial ideology on the lower federal courts raises two important research questions. Narrowly, did the Senate's confirmation strategy force Clinton to nominate more-moderate judges? More broadly, does a divided government ever have a moderating effect on the President's nominees to the lower federal courts? I challenge the common wisdom among judicial scholars that divided government always has a moderating effect on the ideological makeup of the federal bench because the President of one party must compromise with an opposing Senate to secure final confirmation of judicial nominees. Background After taking control of the Senate in 1995, the Republican majority used its "advice and consent" power under Article II of the U.S. Constitution (Sec. 2) as a weapon to force Clinton to cede unprecedented power over lower federal court appointments. Beginning in 1995, the Republican majority embarked on a campaign to stall confirmation of all Clinton judicial nominees to the lower federal courts on the ground that Clinton, under a Democratic-controlled Senate, had been appointing "judicial activists" (Lewis 1995). Though delay tactics are not uncommon during a presidential election year, as the Senate majority hopes its presidential candidate will prevail at the polls (Goldman 1997), this particular strategy began immediately upon the Republicans capturing the Senate and continued well past Clinton's reelection to office in 1996 (A. Lewis 1997). Moreover, although past Senate majorities under divided governments have confirmed fewer nominees in election years, this Senate shut down most confirmation proceedings for more than two years.1 Some Republican leaders pressed for further concessions from the Clinton administration. E.g., at a Republican leadership conference, Senator Phil Gramm (R-TX) offered a resolution that would have given a small number of Republican senators a veto power over nominees to the Federal Appeals Courts, a privilege that had previously been confined to District Court nominations (N. Lewis 1997). Trying another tactic, some Republican senators sought to lower the number of judgeships on the District of Columbia Court of Appeals, rather than give Clinton the opportunity to fill two vacancies on this pivotal Federal Appeals Court. …

https://www.jstor.org/stable/info/3185390

Who Drives the Ideological Makeup of the Lower Federal Courts in a Divided Government

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Who Drives the Ideological Makeup of the Lower Federal Courts in a Divided Government