The Behavior of Federal Judges

Chapter 8
The Auditioners

INTRODUCTION

Desire for promotion is a significant motivating factor in many workplaces, and we expect it to operate in the Article III federal judiciary as well, though both the system of appointment and the age of appointment limit the opportunities for promotion. Promotion from within is common in many institutions and the rule in some, but in the case of the federal judiciary lateral entry is not only permitted but is the dominant route of appointment. In recent years, it is true, almost all Supreme Court Justices have been promoted from within, namely from court of appeals judgeships; only Justice Kagan is a lateral entrant. But the ratio of court of appeals judges to Supreme Court Justices is so high that the promotion, and only 11 percent of district judges have been promoted to a court of appeals or the Supreme Court. (For more data, see Tables 8.1 and 8.2 in the book.)

But these and other numbers overstate the decline because some judges appointed since 1960 may be promoted to the Supreme Court and some district judges appointed since then will certainly be promoted to courts of appeals.

We are interested in how the desire for promotion affects judicial behavior.1 That of course is a different question from whether promotion should be a feature of a judicial system. It has been argued both that a norm against promotion encourages judicial independence and that it diminishes incentives to excel.2 We do not take sides. As throughout this book, our analysis is positive rather than normative.

We study both court of appeals judges who have a realistic prospect of promotion to the Supreme Court and district judges who have a realistic prospect of promotion to a court of appeals. We ask whether any of these potential "auditioners" alter their behavior in order to improve their promotion prospects. This would be consistent with our realistic model of judges.

1 For previous studies, see Erin Kaheny, Susan Haire, and Sara C. Benesh, "Change over Tenure: Voting, Variance, and Decision Making on The U.S. Courts of Appeals," 52 American Journal of Political Science 490 (2008); Gregory C. Sisk, Michael Heise, and Andrew P. Morriss, "Charting the influences on the Judicial Mind: An Empirical Study of Judicial Reasoning," 73 New York University Law Review 1377 (1998); Mark A. Cohen, "The Motives of Judges: Empirical Evidence from Antitrust Sentencing," 12 International Review of Law and Economics 13 (1992), and Cohen, "Explaining Judicial Behavior or What's Unconstitutional' about the Sentencing Commission," 7 Journal of Law, Economics, and Organization 183 (1991).

2 See, for example, Eli Salzberger and Paul Fenn, "Judicial Independence: Some Evidence from the English Court of Appeal," 42 Journal of Law and Economics 831 (1999); Daniel Klerman, "Nonpromotion and Judicial Independence," 72 Southern California Law Review 455 (1999).

Chapter 8 Datasets

CSV Comma Delimited Text (ASCII)

DTA Stata (Version 10 or later)

POR SPSS Portable File (Version 13 or later)

RDATA R Data Format (Version 2.0.0 or later)

SAV SPSS Data File (Version 13 or later)

XLSX Microsoft Excel Worksheet (Version 2007 or later)

XPT SAS Transport Format

Ch8CoACrime
Ch8CoACrime.csv.zip
Ch8CoACrime.dta.zip
Ch8CoACrime.por.zip
Ch8CoACrime.Rdata.zip
Ch8CoACrime.sav.zip
Ch8CoACrime.xlsx.zip
Ch8CoACrime.xpt.zip

Ch8DCtSunstein
Ch8DCtSunstein.csv.zip
Ch8DCtSunstein.dta.zip
Ch8DCtSunstein.por.zip
Ch8DCtSunstein.Rdata.zip
Ch8DCtSunstein.sav.zip
Ch8DCtSunstein.xlsx.zip
Ch8DCtSunstein.xpt.zip


For a full listing of available datasets, view the Dataset Inventory.