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A STUDY OF SELECTED ASPECTS OF BEHAVIOR OF THE JUDGES
OF THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

By
ALVIN nozmm

AN ABSTRACT
Submitted to the College of Business and Public Service of
' Michigan State University of Agriculture and
Applied Science in partial fulfillment

of the requirements for the
degree of

MASTER.OF ARTS

Department of Political Science

1960

Approved 31’. JMA

 

 

Alvin Dozeman

ABSTRACT

This thesis is a study of selected aspects of behavior of the
judges of the United States Court of Appeals for the Tenth Circuit
from 1929 to 1959. The basic data used are the vote of the circuit
judges. Hypotheses are formulated about prior judicial service,
seniority, age, political party affiliation, appointing president
and geographic location of the court and their influence on the votes.
The extent to which the hypotheses are supported is measured by chi-
square and rank correlation tests.

Lack of judicial experience before appointment and type of prior
judicial service seem to have a significant influence. The seniority
and age of the judge and the geographic location of the court do not-
seem to have a significant influence. The appointing president seems
to exert some influence but not a significant amount. Generally,
political party affiliation has not significant influence but there

seem to be some exceptions.

A STUDY OF SELECTED ASPECTS OF BEHAVIOR OF THE JUDGES
OF THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BY

ALVIN DOZEMAN

A THESIS
Submitted to the College of Business and Public Service of
Michigan State University of Agriculture and
Applied Science in partial fulfillment

of the requirements for the
degree of

MASTER OF ARTS

Department of Political Science

1960

A word of thanks is due the members of the committee,

Professors Ferguson, Schlesinger and Ulmer. As adviser,
Professor Ulmer was of special assistance throughout the
writing of this thesis and to him is owed an intellectual

debt far above the levels of significance.

ii

INTRODUCTION . .

SIGNIFICANT DIFFERENCES

PRIOR JUDICIAL SERVICE

SENIORITY . . . . .

AGE 0 O O O O O O O 0 O

POLITICAL PARTY . . . .

APPOINTING PRESIDENT

GEOGRAPHY . . . . . . .

CONCLUSION . . . . . .

TABLE OF

BETWEEN

CONTENTS

iii

Page

15
22
24
27
3'7.
42

46

Table

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

Approval Rates of District Judges With Necessary

LIST OF TABLES

Number of Cases In Period Studied . . . . . . .

Approving Rate
Approving Rate
Approving Rate
Approving Rate
Approval Rate
Approval Rate
Approval Rate
Approval Rate
Comparison of
Comparison of

Comparison of

Average Approving Rate of All Circuit Judges By

Three-Year Per

Comparison of Amount of Fluctuation in Approving

of Circuit Judge Phillips . .
of Circuit Judge Bratton . . . .
of Circuit Judge Huxman . . .
of Circuit Judge Huxman . .

of District Judge Kennedy . . .
of District Judge Kennamer . . .
of District Judge Vaught . . . .

of District Judge Wallace . . . .

Approving Rates of Circuit Judges .

Approving Rates of Circuit Judges

Approving Rates OffCircuitJJugges .

iOdS o o o O O o o O O O I O O 0

Rates of Circuit Judges . . . . . . . . . . . .

Approving Rate
of Service .

Approval Rates
of Service .

Correlation Between Age At Appointment And Approving

Rate of Circui

Correlation Between Age At Appointment And Approval

Rate of Distri

Political Affi
Circuit Judges

Political Affi
District Judge

3 For Circuit Judges By Quarters

For District Judges By Quarters

t Judges . . . . . . . . . . . .

ct Judges . . . . . . . . . . .

liation And Approving Rate of

liation And Approval Rate of

S I O O O O l 0 O O O O O 0 O 0

iv

Page

10
10
11
11
11
12
12
12
16
17

17

18

19

22

23

25

26

31

32

Table

21.

22.

23.

24.

25.

Political Affiliation And Rates of Circuit
And District Judges . . . . . . . . . . . . .

Political Affiliation And Approving Rate of
Three Democratic Circuit Judges . . . . . .

Approving Rates of FDR Circuit Judges .

Approval Rates For District Courts: A11 Judges

Approval Rates For District Courts: A11 Assigned

JUdgeS I O O O O C C O O O O O O O O O O O I O

Page

33

34
39

43

44

It is the purpose of this study to examine certain aspects of the
behavior of judges in the Tenth Circuit. To accomplish this, empirically
testable hypotheses are formulated about the behavior of judges and data
collected from the law reports is used to test the hypotheses. Where
possible, explanations for deviations from expected findings are attempted.

The need for empirical analysis of judicial behavior has been well
put by Professor Schubert in his recent book on the subject (1). He
points out_that the current narrow scope of public law is due to the fact
that the overwhelming majority of those who teach it show "a monumental
lack of concern for any quest for uniformities in the behavior of
judges. . . . In particular, there has been no consideration of questions
of methodology and research technique. . . . (2)”

The need for study of judges on the lower federal courts has been
pointed out by Professor Peltason (3) who says "there is a tendency to
consider the justices of the Supreme Court the only judges worthy of serious
attention by students of politics (4)." He feels this is unfortunate as
lower court judges "are actively engaged in making public policy (5)."

This study, it is hoped, will in some small way aid in satisfying
both needs by empirically examining certain behavior of judges in the

Tenth Circuit.

II

The hypotheses tested in this study are not pure creations. Some
of them are drawn from a general, though limited, knowledge of judges and

the judicial process. Some of them are vaguely stated in various legal

2
commentaries. Some of them have been formulated and tested in studies of
the Supreme Court and, by analogy, are used here because it is possible to
establish similarities between the Supreme Court and some of the lower
federal courts.

The specific similarity we wish to establish is that between the
function of the Supreme Court as it relates to the circuit courts and the
function of the circuit court as it relates to the district courts. That

this can be established must now be determined.
III

One of the functions of the Supreme Court is to insure uniformity
of decisions among the courts of appeals so the law will be uniform
throughout the federal court system. This was pointed out by the late
Chief Justice Vinson in a speech to the American Bar Association.

.The debates in the Constitutional Convention make clear that
the purpose of the establishment of one supreme national tribunal
was, in the words of John Rutledge of South Carolina, "to secure
the national rights and uniformity of Judgments." The function of
the Supreme Court, is, therefore, to resolve conflicts of opinions
on federal questions that have arisen among lower courts. . . . (6)

The Court usually resolves such conflicts by use of its certiorari
power. Rule 19 states that among the reasons considered by the Court when
passing on a petition for certiorari are "where a court of appeals has
rendered a decision in conflict with the decision of another court of
appeals on the same matter; . . ..or has decided an important question of
federal law which has not been but should be settled by the Court . . . . (7)"
Stern and Gressman state that when there is a conflict among the circuits

the Supreme Court will usually grant certiorari (8). Robertson and

Kirkham state the Court will grant certiorari "as of course and irrespective

of the importance of the question of law involved (9).” After granting
certiorari, the Supreme Court usually renders an opinion which then becomes
binding precedent for the courts of appeals.

The precedent setting function of the Supreme Court on the national
level is performed by the appeals courts on the circuit level. Although the
courts do not have a special certiorari power, by affirming and reversing
the district courts they too can set precedents. Once set, the precedents
of an appeals court are binding on the district courts in that circuit
although there may be contrary precedents in other circuits which the
district courts would prefer to follow (10).

Related to the precedent setting function is the administrative
function. In the federal system, the chief justice of the Supreme Court
and the chief judges of the courts of appeals make temporary assignments
of judges to other courts (11). The chief justice calls the Judicial
Conference of the United States (12), and the chief judges call the
circuit conferences (13). Thus there is ample justification for drawing
analogies between the Supreme Court and the circuit courts and further
discussions of the similarities will be presented with each hypothesis

as necessary.

IV

The specific circuit selected for study is the Court of Appeals for
the Tenth Circuit. The Tenth Circuit was created in February, 1929, by
dividing the Eighth Circuit, and since then has remained geographically
stable. The states included in the Tenth are Colorado, Kansas, New Mexico,
Oklahoma, Utah, and Wyoming. Except for Oklahoma, each state has a single

district court; Oklahoma has three. The circuit and district judges who

were serving in the Eighth Circuit were assigned to the Tenth if they
resided in the area included in the Tenth. Two circuit judges and eight
district judges were so transferred. However, three of these had served
less than a year before transferring. Since its formation, eleven circuit
judges have sat on the Tenth Circuit and twentyweight district judges have

served the districtS'withinlib.

The necessary information on the voting of the judges was culled
from the Federal Reporter, Federal Reporter Second Series, and the Federal
Supplement, published by West Publishing Company. The publications are
not "official" in the same sense as are the reports of Supreme Court
decisions published by the Government Printing Office; however, West
Publications are used extensively by lawyers and judges in all levels of
courts. Because the action in both the district and appeals courts must
be reported to supply duxnecessary information, not every case in the Tenth
Circuit can be used as every case is not reported. The procedure used
in gathering the data is as follows. The Federal Reporter and the
Federal Reporter Second Series (F. and F.2d) were used to obtain a list
of the appealed cases in the Tenth Circuit. These cases are grouped by
circuit in an index in each volume. The information on each case for the
action in the court of appeals was placed on a three-by-five card; this
information consisted of the citation, date, action of the court of appeals,
how each judge voted and the citation for the action in the lower court.
The citation for the action in the lower court was checked in the Federal
Supplement (F. Supp.) to obtain the name of the district judge, the date,

and the court and this was also placed on the card.

 

 

Because the period under study spans thirty years, not every
circuit judge had an opportunity to pass upon every district judge, or
in some instances, only a few opportunities. That is, some circuit judges
may have left the bench before some district judges were appointed and
vice versa. Obviously, unless there is some overlap in their periods of
service, we cannot speak of a relationship between judges. Since the
actions ofjudges are shown almost exclusively in percentages in this study,
it is necessary to set a minimum number about which relatively meaningful
statements could be made in percentage figures; this is set at fifteen (l4).

Some of the information is shown by quarters of service for the
judges. In forming the quarters, the length of service of the judge was
calculated to begin with his appointment End, except for those whose service
actually ended before, to end in 1959, the end of the period under study.
Exceptions were made in instances where the judge had served for less than
five years; any judge who served for this short a period was considered
as having served only one quarter.

Since hypotheses are here formed with expectations of having them
supported or refuted, some measure must be used to determine thesextent
to which this occurs. The measure used here is the probability that the
findings have of occurring by chance. The two tests used are the chi-square
and rank correlation, both as given in Sidney Siegel: NONPARAMETRIC
STATISTICS FOR THE BEHAVIORAL SCIENCES. The results of these tests are
translated into levels of significance and shown on each table. The level
of significance which must be met.to claim support for a hypothesis is
set here at .05. However, all data, regardless of significance is shown

and discussed.

VI

"jUdiCial capability” are used interchangew

"Judicial ability" and
ably and, as here used, are defined as the success 11 lower court judge
has in getting apprcval of his decisiors by a higher court judge. Thus
if we find a lower court judge with a higher percentage of his actions
approved, we will sav that in the opinion of the higher court judge, this
judge has a high degree of judicial ability. The rate at which a lower
court judge has his actions approved may be called the "approval rate"
or "rate of deference" because the approval of a decision by a higher
court judge can be considered as an act of deference by the judge to the
action of the lower court judge. Higher court judges also have approving
rates: the rate at which they approve the actions of the lower court

judges. "Decision, action" or "case” may be used to refer to the same

thing.

10.

11.

12.

13.

14.

NOTES

Schubert, Glendon A. QUANTITATIVE ANALYSIS OF JUDICIAL BEHAVIOR.
East Lansing (Mich.): 1959.

Id. P. 4.

Peltason, Jack W. FEDERAL COURTS IN THE POLITICAL PROCESS.
Garden City (N.Y.): 1955.

P. 13.

F4
a.

,;Q. P. 15-

Vinson, Fred W. Address Before the American Bar Association.
69 SUP. CT. v«xiii (1949).

Stern, Robert L. and Eugene Gressman. SUPREME COURT PRACTICE
(2d ed.). Washington, D. C.: 1954. P. 462.

Id. P. 111.

Robertson, Reynolds and F. R. Kirkham. JURISDICTION OF THE SUPREME
COURT OF THE UNITED STATES. (2d ed. R. Wolfson & P. Kurland).

New York: 1951. P. 629. §E£_§gg Stern, Robert L. Denial of Certiorari
Despite a Conflict. 66 HARV. L. REV. 465 (1953) and Harper,

Fowler V. and Arnold Leibowitz. What the Supreme Court did not do
during the 1952 Term. 102 U. PA. L. REV. 427 (1954). Pp. 442-45.

28 U.S.C.A. 3 46, n. 3 (1949).
28 U.S.C.A. §§ 291«292 (Supp. 1959).

331 (Supp. 1959).

010)

28 U.S.C.A.

333 (Supp. 1959).

(DU)

28 U.S.C.A.

By setting the level at fifteen, it is possible to include a number
of judges who had just above fifteen cases, i.e., from fifteen to
twenty. There were almost no judges who had just below fifteen
cases; generally the drop was to below ten.

II

We have noted above that the Supreme Court brings about uniformity
by reversing some circuit judges and affirming others. We would hardly
expect this reversing and affirming to be done at random. Rather, we
would expect that some circuit judges would have more cases affirmed than
others. This tends to be confirmed by a study of Chief Judge Edgerton
of the Court of Appeals for the District of Columbia (1). This study
showed that there was a sixty percent chance of getting a grant of certiorari
when Judge Edgerton dissented but only a thirteen percent chance when he
wrote the majority opinion. In seventeen out of twenty-two cases in which
he dissented, the Supreme Court reversed.

There is other evidence, less objective, that Supreme Court
Justices take note of the circuit judges. We are told that the late
Chief Justice Vinson always asked his law clerks the name of the lower
court judge (2). In one of the important cases in which Vinson wrote the
opinion, he stated that he was adopting the language of the lower court
judge. The judge in this case was Judge Learned Hand, one of the better
known judges on the federal bench (3).

Justice Frankfurter, writing on the retirement of Judge Magruder
of the First Circuit, wrote,

Naturally enough, an important factor in the exercise of the

Court's discretionary judgment is the weight of the opinion below . . . .
When petitions for certiorari from decisions in which Judge Magruder
wrote have come before the Court, such has been the quality of his
opinions, the persuasiveness of his reasoning, and the confinement

of decision to its proper scope, that on more than one occasion

one has been led to say to his brethern, "Were we to bring the case

here, could we improve on Magruder? (4)"

With this, as a circuit judge who reviews district court actions, Judge

Ma ruder a rees; ". . . if the district court has written a careful and
8 g

full opinion, with which we agree, and which we feel unable to improve
upon, we should affirm on the opinion of the court below (5)."

So we see that the reviewing judge takes into consideration who
the judge in the lower court was and that some lower court judges are
more successful than others in getting their actions approved. Or, as we
are using the terms, they have more ability and higher approval rates.
The point of interest here is whether the difference in approval rates
is such that it is not merely a chance occurrence. To determine this, a
hypothesis is stated in manner so as to make empirical testing possible.

So stated, it is: There will 23.2 significant difference in the approval

 

 

rates of judges in the Tenth Circuit.

That the difference is significant and that it is not a chance
occurrence can be seen from the tables which follow. In six out of nine
tables the level of significance is above .05. Table 1 gives the approval
rates of district judges who had the necessary number of actions; the range

here is from 87.5 to 54 2; the level of significance is .02.
TABLE 1

APPROVAL RATES(N?DISTRICT JUDGES WITH NECESSARY
NUMBER OF CASES IN PERIOD STUDIED

 

 

District Judge Approval Rate
Kennedy 79.4
Symes 54.8
Kennamer 75.5
Vaught 54.2
Hopkins 64.7
Rice 87.5
Mellott 72.7
Wallace 62.2

Average ‘ 65.1

2

X : 16.63 df: 7 p.: .02

10

This means that for some reason, the circuit judges in the Tenth
Circuit approve the actions of these district judges in a manner such that
only two times out of a hundred could it occur by chance.

Tables 2 to 5 present data on one circuit judge and his approving
rate for three or more district judges. Tables 6 to 9 give the approval
rates of one district judge from three or more circuit judges. Only one
circuit judge and two district judges have non-significant differences

in their rates.
TABLE 2

APPROVING RATE OF CIRCUIT JUDGE PHILLIPS

 

 

District Judge Approving Rate
Kennedy . 84.3
Symes 52.0
Kennamer 79.0.
Vaught 57.6
Hopkins 81.2
Mellott 68.7
Wallace . 59.2
Phillips Average 66.5
x2: 15.87 df: 6 p.: .02
TABLE 3

APPROVING RATE OF CIRCUIT JUDGE BRATTON

 

 

District Judge Approving Rate

Kennedy 84.6

Symes 56.5

Kennamer 71.4

Vaught 63.0

Wallace 60.6
Bratton Average 68.1

2

X : 7.32 df: 4 p.: .20

TABLE 4

APPROVING RATE OF CIRCUIT JUDGE HUXMAN

 

 

District Judge Approving Rate
Kennedy 91.3
Vaught 34.2
Wallace 47.8
Huxman Average 59.0
X2: 30.38 df: 2 p.: .001
TABLE 5

APPROVING RATE OF CIRCUIT JUDGE MURRAH

 

 

District Judge Approving Rate
Vaught 37.5
Mellott 72.2
Wallace 82.3
MUrrah Average 61.3
x2: 18.65 df: 2 p.: .001-
TABLE 6

APPROVAL RATE OF DISTRICT JUDGE KENNEDY

 

 

Circuit Judgg Approval Rate
Phillips 84.3
Bratton 84.6
Huxman 91.3
Kennedy Average 79.4

x2: 2.45 df: 2 p.: .30

TABLE 7

APPROVAL RATE OF DISTRICT JUDGE KENNAMER

 

 

Circuit Judge Approval Rate
Lewis, R. E. 71.4
Cotterall 80.0
McDermott 76.1
Phillips 79.0
Bratton 71.4

Kennamer Average 75.5
X2: .98 df: 4 p.: .98

TABLE 8

APPROVAL RATE OF DISTRICT JUDGE VAUGHT

 

 

Circuit Judge Approval Rate
Phillips 57.6
Bratton 63.0
Huxman 34.2
Murrah 37.5
Pickett 52.9
Vaught Average 54.2
x2: 14.50 df: 4 p.: .01
TABLE 9

APPROVAL RATE OF DISTRICT JUDGE WALLACE

 

 

Circuit Judge Approval Rate
Phillips 59.2
Bratton 60.6
Huxman 47.8
Murrah 82.3
Pickett 62.5
Wallace Average 62.2

x2: 10.29 df: 4 p.: .05

13

The hypothesis that there will pg.§ significant difference ip_the

approval rates pf judges ip_the Tenth Circuit finds support $2 the data

 

from the Tenth Circuit. In the sections which follow, the data will be
viewed in various ways to determine whether some suggestions can be offered

to explain this difference in rates.

14
NOTES

Rosenzweiz, Simon. The Opinions of Judge Edgerton--A Study in
the Judicial Process. 37 CORNELL L.Q. 149 (1952). Pp. 165-66.

Harper, Fowler V. and ArnoIEhégibowitz. What the Supreme Court Did
Not Do During the 1952 Term.” 102 u. PA. L. REV. 427 (1954).
P. 440, n. 60.

Dennis v. United States 341 U.S. 494 (1951). P. 510.

Frankfurter, Felix. Calvert Magruder. 72 HARV. L. REV. 1201
(1959). P. 1202. See also Frankarte , Felix.Judge Henry
Edgerton, 43 CORNELL L. Q. 161 (1957).

Magruder, Calvert. The Trials and Tribulations of an Intermediate
Appellate Court. 44 CORNELL L. Q. 1 (1958-59). P. 3.

15

III

Not all circuit judges begin their careers with the same personal
background and experiences.and we would expect that this would have some
effect on their approving rates. The specific aspect of background which
we will investigate in this section is that dealing with prior judicial
service or lack of such service.

There are some rather vague assumptions in this area explication
of which may aid us somewhat in forming the hypothesis. One of these is
that prior service as a district judge will give a circuit judge more
sympathy and knowledge of the problems faced by the district judge. This
was well stated by a district judge in a recent tribute to a retiring
circuit judge. The author is the Chief Judge of the District ofMinnesota;
the retiring judge served on the Court of Appeals which reviewed cases
from.Minnesota.

During his long tenure, his opinions cover the entire gamut

of federal litigation. Among the many contributions he has made
to that field, however, it is interesting to note that, as a
former trial judge, he always has recognized the wide discretion
which must necessarily rest with the trial court . . . .

When he came to the court of appeals in 1932, he was a seasoned
trial judge. He fully recognized and appreciated the many daily
problems which come across the trial court's threshold . . . . (1)

However, as is so often the case evidence contrary to the assumption
can also be found. In this instance it is a very sympathetic view of the
position of the district judge expressed by a circuit judge who did not
serve as a district judge. The following is from an article by Judge
Magruder of the Court of Appeals for the First Circuit.

As to trial judges, we must always hear in mind that they may

be as good lawyers as we are, or better. They are under the dis-
advantage of often having to make rulings off the cuff, so to speak,

in the press and urgency of a trial proceeding, and the main reason
we on appeal may have a better chance of being right is that we have

16

more time for reflection and study. Hence, we should approach
our task of judicial review with a certain genuine humility.(2).

Although a sympathetic view of the district judge and his problems
is not necessarily limited to former district judges, it would seem that
common sense gives great weight to former service as a district judge and
the hypothesis is so worded. Circuit judges who have served fig district
judges will, during the first three years 2f service §§_circuit judges,
have approving rates significantly higher than circuit judges who did not
figugggyg Egg pg significant difference after three years (3).

The data from the Tenth Circuit does not support the hypothesis.
In Table 10 the approving rates of former district judges are compared
with all other circuit judges for the first and the second three year
periods of service. For both periods, former district judges have slightly

lower approving rates. The hypothesis must therefore be rejected.
TABLE 10

COMPARISON OF APPROVING RATES OF CIRCUIT JUDGES

Former
Period of Average District All
Service Rate Judges Others
1-3 years 66.3 64.5 68.8
4-6 years 54.7 53.7 56.0

However, our investigation of the effect of prior judicial service
should not stop here. Among the circuit judges who were not district
judges are some who were state judges and some who had no prior experience
as judges. This gives us three categories of circuit judges for comparison

and this comparison is shown in Table 11.

17

TABLE 11

COMPARISON OF APPROVING RATES OF CIRCUIT JUDGES

 

Former Former No
Period of Average District State Prior
ServiCe‘ Rate Judges Judges Experience
1-3 years 66.3 64.5 65.0 71.6
4-6 years 54.7 53.7 85.0 43.4

Here we see that the approving rates for the first six years vary
widely. All circuit judges with prior experience begin with approximately
the same rate but then their rates go in opposite directions. The circuit
judges with no prior experience do not have approving rates closely equal
to those of either of the other two categories.

We have noted above the amount of fluctuation in the approving
rates for the first six years of service. The question is raised as to
whether this continues. In Table 12, Table 11 is continued for another
three years. It can be seen that all three categories of circuit judges
have fairly equal approving rates and that all are near the average for the

third three-year period.
TABLE 12

COMPARISON OF APPROVING RATES OF CIRCUIT JUDGES

 

Former Former No
Period of Average District State Prior
Service Rate Judges Judges Experience
1-3 years 66.3 64.5 65.0 71.6
4-6 years 54.7 53.7 85.0 43.4
7-9 years 66.2 69.0 64.4 65.5

Only one circuit judge without prior judicial experience served

longer than ten years. Two former state judges served longer than ten years

18
but one of these transferred from the Eighth Circuit and after his eleventh
year of service heard only from one to six cases a year, in effect leaving
only one former state judge who served longer than ten years. After the
tenth year of service the Court of Appeals for the Tenth Circuit was
really composed of all former district judges except for the one former
state judge and the one man with no prior judicial experience. Because
of this limitation, it is not possible to continue a comparison beyond ten
years; only the average approving rates for all circuit judges will be

shown as in Table 13.
TABLE 13

AVERAGE APPROVING RATE OF ALL CIRCUIT JUDGES
BY THREE-YEAR PERIODS

Average
Period of Approving
Service Rate
1-3 66.3
4-6 54.7
7-9 66.2
10-12 68.5
13-15 66.1
16-18 66.0
19-21 60.9
22~24 65.6

We see that the approving rates never fluctuate as much as they did
in the first ten years. This suggests that upon coming to the court,
circuit judges have a less fixed position or are less confident of their
role and that they adapt through time and experience. This process could
be somewhat similar to that of Supreme Court Justices as discussed by Professor
Snyder (4). In her study of cliques on the Supreme Court, Professor

Snyder found that newly appointed Justices tended to begin in a neutral

19
or pivotal clique and later join a clique that was less neutral. She
suggests this may be because the Justices gain an "in-group" feeling for
one of the less neutral cliques. Although we are not dealing here with
cliques as Professor Snyder uses the term, we could consider the panel of
judges sitting in each case a clique. The acquired "in-group" feeling
would then be for the particular panel of judges. That these panels tend
to be cohesive is supported by the rate of dissent in this data: only
53 out of 1127 votes, or 4.7 percent, were cast in dissent.

Looking again at Table 12, it is interesting to note the amount
of fluctuation in approving rate by each category of circuit judge. These

amounts are presented in Table 14.

TABLE 14

COMPARISON OF AMOUNT OF FLUCTUATION IN APPROVING
RATES OF CIRCUIT JUDGES

 

Between Former Former No
3-Year Average District State Prior
Periods Amount Judges Judges Experience
1-2 11.6 10.3 20.0 28.2
2-3 11.5 15.3 20.6 22.1

Former district judges have the least amount of fluctuation in
their approving rates; this suggests that either they have less difficulty
in finding a position, or that they may have had a partially determined one
before coming to the court of appeals. Both would be possible as the
district judges would have more knowledge of the types of actions brought
in federal courts and some knowledge of the judicial process in those
courts. Since former district judges seem to be more stable, this might

help account for the stability in the approving rates after the tenth year

20

of service for, as we have noted, former district judges are in the majority
after this time. Former state judges have an intermediate amount of
approving rate fluctuation. A suggested reason for this is that while they
would have less knowledge of federal types of litigation, they would at
least have some knowledge of the judicial process. Circuit judges with no
prior experience would probably have little knowledge of the judicial
process or of federal litigation. This may be the reason for their having
the greatest amount of approving rate fluctuation for both periods.

In this section the background of circuit judges in so far as it
related to prior judicial service was investigated. The original hypothesis
was not confirmed. However, a difference in background was reflected in

approving rates. _£ was found that the amount gf fluctuation lg approving

 

before coming £2 the circuit court; former district judggs had the least
amount gf approving rate fluctuation, former state judges 33 intermediate
amount, and circuit judges with pg prior judicial experience had the

ggeatest amount 2f approving rate fluctuation.

21

NOTES

Nordbye, Gunnar H. A Tribute to Judge John B. Sanborn. 44 MINN. L.
REV. 200 (1959). P. 203.

Magruder, Calvert. The Trials and Tribulations of an Intermediate
Appellate Court. 44 CORNELL L.Q. 1 (1958-59). P. 3.

A three-year period is used because this ensures the necessary number
of cases for comparison for the periods before and after the cut-off
date.

Snyder, Eloise C. The Supreme Court as a Small Group. 36 SOCIAL
FORCES 232 (1958). P. 238.

22

IV

The effect of seniority on judges has been rather widely studied
by persons in the field of law and political science. These studies have
tended to concentrate on the relation of seniority and judicial attitudes
and philosophy. This study, however, will attempt to discover whether
seniority has a significant effect on the approving and approval rates
of judges without discussing its relation to judicial philosophy.

We have noted previously that the approving rates of circuit judges
tended to fluctuate during the early period of service and then stabilize.
This, it was suggested, might indicate less self-confidence in the early
period of service and that self-confidence was gained through service on
the bench.

When deciding whether to approve or disapprove the actions of a
district judge, the circuit judge is in a position of being able to express
an opinion opposed to that of the district judge. As a circuit judge gains
experience through seniority, we could expect him to hesitate less to
overrule the district judge. Stated in hypothetical form, this is

Ag the circuit judge gains seniority, his approving rate will
decrease.

To test this hypothesis, the approving rates of the circuit judges

were computed by quarters of service; these are shown in Table 15.
TABLE 15

APPROVING RATES FOR CIRCUIT JUDGES BY QUARTERS OF SERVICE .

 

Quarter Approvinijate
1 65.2

2 64.5

3 65.2

4 60.6

r

s .416

23
The hypothesis is not supported. The level of significance does
not meet that set. The date is presented in another form in Table 13
in which the approving rates are given by three-year periods; the rS is .619.
Arranged by five-year periods (not shown) the rS is -.400. Using the data
presented here as a guide, we could not say that increasing seniority
causes the circuit judge to defer less to the district judge.
Turning now to the district judge, we might again expect that as
the district judge gains seniority he would have a higher approval rate.
This might be because the circuit judge would consider him as having
gained ability through service. The hypothesis stated here is:
‘Ag the district judge gains seniority, his approval rate will increase.
The approval rates by quarters of service for the district judges

are given in Table 16. Again the hypothesis is not supported.
TABLE 16

APPROVAL RATES FOR DISTRICT JUDGES BY QUARTERS OF SERVICE

 

Quarter Appgoval Rate
1 64.6
2 62.6
3 70.9
4 61.5
r .400
s

In this section, the effect of seniority upon the approving and
approval rates of judges was investigated. The two hypotheses were not

supported. From the data used here, i£_wou1d not 22 possible £9 say that

 

seniority has a significant effectgggthe approving and approval rates pf

 

 

 

_£_judges.

24

The data on the age of a judge at the time of his appointment and
its effect on his subsequent behavior is placed here because the same
considerations are applicable to age and seniority as factors in
judicial behavior as studied here. The available literature on both is
actually more concerned with their effect on judicial attitudes, not of
concern here. Thus, in attempting to form the hypothesis, ”guesstimates"
play a large role.

We could assume, for instance, that a young, newly appointed
circuit judge would feel less inclined to substitute his opinion for that
of the district judge than would an old, newly appointed circuit judge.
Or, we could assume that a circuit judge would feel more inclined to
approve the actions of an old, newly appointed district judge than the
actions of a young, newly appointed district judge. However, for all
cases, we could also assume the opposite as there is no evidence either
way. For this reason, the hypothesis is formed as follows:

Thg_§g§_§£“yhigh'§_jp§gg ig appointed will not significantly Effect
his approving g£_approval rate.

This hypothesis is supported by the data in Tables 17 and 18.

In Table 17, the circuit judges with the necessary number of
actions are listed by the age at which they were appointed, the oldest at
the tOp and the youngest at the bottom; their approving rates for the first
quarter of service are also given. The correlation is only .383 and does

not meet the level of significance set.

25

TABLE 17

CORRELATION BETWEEN AGE AT APPOINTMENT AND APPROVING
RATE OF CIRCUIT JUDGES

 

Circuit Appointed Approval Rate For First
Judge At Age Quarter Of Service
Williams 69 73.9
Cotterall 64 65.7
Huxman 52 55.1
Bratton 45 77.3
Lewis, D. T. 44 67.8
Phillips 44 61.1
McDermott 43 73.6
Murrah 36 47.3

Omitted is Lewis, R. E. because he did not serve his first quarter on the
Tenth Circuit.

rs .383

The information for district judges is given in Table 18;
the district judges are grouped by age at which appointed. Again, the

correlation does not meet the level of significance set.

26

TABLE 18

CORRELATION BETWEEN AGE AT APPOINTMENT AND APPROVAL
RATE OF DISTRICT JUDGES

 

Appointed Approval Rate For First
At Age One-Half of Service
60 or over (1) 67.6

50-60 (2) 56.7

50 or under (3) 65.6

1. Hatch, Helvering, Kennamer, Knous, Rizley and Wallace.
2. Arraj, Hopkins, Kerr, Mellott, Ritter and Vaught.

3. Chandler, Christenson, Kennedy, McDermott, Murrah,
Rice, Rogers, Savage and Symes.

s .556

From the data presented here, E2 cannot say that the age §£_which

 

.3 judge i§_appointed significantly affects his approving g£_approval rate.

27

VI

The subject of ”judges and politics” is one of great intereSt to
both student and layman. Very often, the interest centers on political
party affiliation as an indicator of judicial philosophy or as an aid in
the explanation of judicial behavior.

An early examination of judicial behavior from a more or less
empirical View is Professor Pritchett's work on the Supreme Court (1).

In it, Justices are grouped into blocs based upon dissenting and assenting
votes. When this is done, it is found that the consistent blocs on the
Court are not based upon political party affiliation. One example of the
disagreement among Justices of the same party is that of Justices Brandeis
and McReynolds. These two men, both Democrats and both appointed by
President Wilson (Pritchett calls them Wilson‘s "woefully mismated pair of
representatives)"(2), were never in the same bloc.

Applying a modified bloc analysis to the Supreme Court, Professor
Schubert also concludes that "the partisan political affiliations of the
justices appear to have been irrelevant to the group behavior of the United
States Supreme Court . . . . (3)" Finding, however, that it is of
primary importance in the Michigan Supreme Court, Professor Schubert suggests
that the life tenure of federal judges may allow for more independence (4).
In her study of clique membership on the Supreme Court, Professor Snyder
found no relation between political party affiliation and clique membership (5).

Professor Ulmer's study of judicial lawmaking found no conclusive
evidence that attitude toward change was related to the political affiliation
of a Supreme Court Justice (6). The importance of this finding in a legal

system in which "stare decisis is at least the everyday working rule of our

28
law" (7) should perhaps be underscored. In such a legal system, the
attitude towards change or towards the proper role of stare decisis is
an important, if not the most important, part of a judicial philosophy.

It would no doubt create quite a stir should a study show a definite
relation between the political party of a judge and his attitude toward
change. If we are to judge from the sample statements which follow, it
would be difficult to establish relation between the politics and attitudes
of a judge.

In each case, the "change" discussed is the one which ranks perhaps
uppermost in the considerations of the circuit judges in their own decision-
making: a change by the Supreme Court of the precedent which controls
the case being considered. As noted earlier, these precedents are considered
binding on all lower federal courts. However, among the judges on the
federal courts, there seems to be considerable disagreement as to the
degree to which the precedents must be followed. For some judges, a
precedent is a precedent is a precedent; for others, there are precedents
and then there are precedents.

Speaking for those to whom precedents are precedents, Circuit
Judge Magruder (8) cites with approval his own First Circuit (he not
sitting) and the opinion of Judge Mahoney:

It is true that [the precedents] were by a divided court but

until they are overruled by the court itself or Congress enacts
legislation . . . contrary to the interpretation placed upon it by
the court, we are bound to accept the law as promulgated by [them] (9).

Dissenting from this view was Chief Judge Woodbury:

. . . on rare occasions . . . situations arise when in the exercise

of the duty to prophesy thrust upon us by our position in the federal

judicial system we must conclude that dissenting opinions of the past
express the law of today (10).

29
Of the "duty to prophesy," Chief Judge Hutcheson has written:
We cannot agree . . . that it is any part of our duty to consult

crystal ball gazers or diviners or to do the gazing and divining for
ourselves in order to base a decision onua prophesy.(ll).

And Judge Harrison:

It is not my function to disregard [a precedent] because it is old.
If the Supreme Court was in error in its former opinion or changed
conditions warrant a different approach, it should be the court to
correct the error. Trial courts . . . should not devote their efforts
to guessing what reviewing courts may do with prior holdings because
of lapse of time or change of personnel in such courts (12).

Among those who agree with Judge Woodbury that the duty to prophesy

is a real one we have Judge L. Hand:

. I conceive that the [court's] duty is to divine, as best
it can, what would be the event of an appeal in the case before it (13).

And Judge J. Frank:

Legal doctrines . . . often prove to be inadequate . . . and when
a lower court perceives a pronounced new doctrinal trend in Supreme
Court decisions, it is its duty . . . to follow it not to resist
it (14).

A Judge skilled in perceiving trends in the Supreme Court was the
late Chief Judge Parker who engaged in what Judge Magruder called "nose-
counting" in the second Flag Salute Case:

Ordinarily we would feel constrained to follow an unreversed
decision of the Supreme Court . . . . The developments with respect
to the [precedent] , however, are such that we do not feel that it is
incumbent upon us to accept it as binding authority. Of the seven
justices now members of the Supreme Court who participated in that
decision, four have given public expression to the view that it is
unsound (15).

Since Judge Parker was upheld by the Supreme Court (16), it casts

some doubt on the oft-repeated "counters can't think."

If we attach party labels to the judges who authored the statements,
we see that judges in both political parties disagree with each other and

that the party label will not help to indicate or explain the attitude

towards change expressed by these judges. Judges Magruder, Mahoney and

30

Woodbury were all on the First Circuit; all were Democrats appointed by
President F. D. Roosevelt; they split as to the role of precedent 2-1.
Judge Hutcheson, a Democrat appointed by a Republican president, disagreed
with Judges Parker and Hand, Republicans appoinflaflerepublican presidents.
Judge Frank, a Democrat from New York, disagreed with Judge Harrison, a
Democrat from California, both appointees of President F. D. Roosevelt (17).
Thus it seems quite clear that the party label does not help identify that
important part of a judicial philosophy which relates to change. We have
next to determine whether we can correlate political affiliation with
particular patterns of behaviorcf judges under study here. To do this, a
rather broad hypothesis is formulated.

Political party affiliation will not significantly influence the

gpproving and approval rates pf judges 13 the Tenth Circuit.

 

We will first determine whether the approval rates generally are
significantly influenced by political party. That is, by approval rate
alone, could we expect to separate the Republicans from the Democrats;
or, stated in another manner, could we expect to find a typically
Republican or a typically Democratic approval rate. In Table 19, the
circuit judges are grouped by party and their over-all approving rate given.
No significant difference between the parties appears. In Table 20 the
district judges with the requisite number of cases are grouped by party
and their over-all approval rates given. Again no significant difference
between the parties appears. In fact, the differences among the district
judges of each party are greater than the differences between the parties.
It thus seems safe to say that the general approval rate of a judge is

not significantly influenced by political party.

TABLE 19

31

POLITICAL AFFILIATION AND APPROVING RATE OF CIRCUIT JUDGES

Republican Circuit Judges

 

Lewis, R. E. 62.0
Cotterall 65.7
Phillips 66.5
McDermott 69.6
Lewis, D. T. 67.8
x2; .67 df: 4 p.: .98

Democratic Circuit Judges

 

Bratton
Williams
Huxman
Murrah

Pickett

X2: 1.48 df: 4 p.:

Republican Average

Democratic Average

2

X 2 .03 df: 1

Average of All
Circuit Judges

p..

68.1
67.7
59.0
61.3
58.9
.90
65.6

63.1

64.2

TABLE 20
POLITICAL AFFILIATION AND APPROVAL RATE OF DISTRICT JUDGES

Republican District Judges

 

Hopkins 64.7
Kennamer 75.5
Kennedy 79.4
Symes 54.8
Vaught 54.2
X2: 11.23 df: 4 p.: .05

Democratic District Judges

 

Mellott 72.7
Rice 87.5
Wallace 62.2
x2; 7.46 df: 2 p.: .05

Republican Average 60.3

Democratic Average 66.8

2

X : .40 df: l p.: .70

Average of All
District Judges 65.1

33
Next we determine whether the approving rate of a circuit judge for
any district judge is significantly influenced by political party; the evidence
here is less conclusive. In Table 21 the approving rates of the circuit

judges of both parties are given for the district judges of both parties.

TABLE 21

POLITICAL AFFILIATION AND RATES OF
CIRCUIT AND DISTRICT JUDGES

Approval Rate of All Republican
Circuit Judges When Reviewipg

 

All Republican District Judges 65.4
All Democratic District Judges 67.0
.60 df: l p.: .50

Approval Rate of All Democratic
Circuit Judges When Reviewing

 

All Republican District Judges 60.1
All Democratic District Judges 66.7
.28 df: l p.: .70

The Republican circuit judges approve decisions of Democratic district
judges more than decisions of Republican district judges and both above the
average approving rate of all circuit judges. The approval rate of
Republican district judges is practically (.2 less) the same as the average
of all Republican circuit judges. Democratic circuit judges approve
decisions of Democratic district judges above the average approving rates
of all circuit judges and all Democratic circuit judges while decisions of
Republican district judges are approved less than both averages. Thus there

is a small, but not significant, difference in the party approving rates.

34
Among the Democratic circuit judges, however, are some who do vary
their approving rates with the political party of the district judge. In
Table 22 the approving rates of three Democratic circuit judges for the
district judges of both parties are given. The level of significance is
such that the difference in approving rates for the parties could hardly

have happened by chance so other explanations should be offered.

TABLE 22

POLITICAL AFFILIATION AND APPROVING RATE
OF THREE DEMOCRATIC CIRCUIT JUDGES

Approval Rate

 

 

 

When District Difference
Circuit Judge is Between
Judge Republican Democratic Parties
Huxman 54.3 64.5 10.2
Murrah 50.6 73.5 22.9
Pickett 54.1 61.1 7.0
55.44 df: 2 p.: .001

The simplest explanation would be that some Democratic judges
are partisan and show it in their approving rates. This, however, is
less explanation than description and something more complex will be

attempted.

35

The three judges in Table 22 were all appointed in the period
1939-1949; since the only judges appointed since then, two Republicans by
President Eisenhower, do not have enough actions to make comparisons, these
three are the most recent judges for which comparisons can be made.

Looking at Table 22, we see that the "Difference Between Parties" increases
going from Huxman (1939) to Murrah (1940) and decreases going from Murrah
to Pickett (1947). If we picture the "Difference" as a line on a chart,

it will resemble a slightly lopsided tent.

One speculation which could be madel is that since 1939, circuit
judges have shown greater or lesser degrees of partisanship in their
approval rates. The usefulness of this speculation cannot be conclusively
shown until the judges appointed by President Eisenhower have enough actions
to make comparisons. If it is correct we will expect to find them
distinguishing between parties at about the same rate as the judges in
Table 22.

We could also speculate that generally judges are uninfluenced
by politicalwparty affiliations and that these three are an exception to
the rule. If this speculation is correct, we will expect that the judges
appointed by President Eisenhower will show little or no difference in
approval rates of the district judges of different parties.

Thus the original hypothesis that political party affiliation would

not influence approval rate lg generally supported but there are some

 

exceptions.

 

10.

11.

12.

13.

14.

15.

16.

36

NOTES
Pritchett, C. Herman. THE ROOSEVELT COURT. New York: 1948.

Id. P. 2.

Schubert, Glendon A. QUANTITATIVE ANALYSIS OF JUDICIAL BEHAVIOR.
East Lancing (Mich.): 1959. P. 142.

Ibid.

Snyder, Eloise C. The Supreme Court as a Small Group. 36 SOCIAL
FORCES 232 (1958). P. 435.

Ulmer, S. Sidney. An Empirical Analysis of Selected Aspects of
Lawmaking of the United States Supreme Court. 8 J. PUB. L. 414
(1959). P. 435.

Cardozo, Benjamin N. THE NATURE OF THE JUDICIAL PROCESS. New
Haven: 1921. P. 20.

Magruder, Calvert. The Trials and Tribulations of an Intermediate
Appellate Court. 44 CORNELL L. Q. 1 (1958-59). P. 4.

United States v. Girouard 149 F.2d 760 (lst Cir. 1945). P. 763.
149 F.2d 760. P. 765, (dissenting).
RD-DR Corporation v. Smith 183 F.2d 562 (5th Cir. 1950). P. 565.

Toolson v. New York Yankees, Inc. 101 F. Supp. 93 (S.D. Calif.
1951). Pp. 94-95.

Spector Motor Service v. Walsh 139 F.2d 809 (2d Cir. 1943). P. 823,
(dissenting).

Perkins v. Endicott Johnson Corp. 128 F.2d 208 (2d Cir. 1942).
P. 217.

Barnette v. West Virginia State Bd. of Education 47 F. Supp. 251
(S.D. W.Va. 1942). Pp. 252-53.

West Virginia State Bd. of Education v. Barnette 319 U. S. 624
(1943).

Staff of Sen. Comm. on the Judiciary, 85th Cong., 2d Sess.,
LEGISLATIVE HISTORY OF THE UNITED STATES CIRCUIT COURTS OF APPEALS
AND THE JUDGES WHO SERVED DURING THE PERIOD 1801 THROUGH MARCH
1958 (Comm. Print 1958). 30 WHO'S WHO IN AMERICA. Chicago: 1958.

37

VII

We have seen that political party affiliation in general is not
a factor influencing the approving rate of judges. In this section the
influence of the appointing president on the approving rates will be
investigated.

There are two general assumptions in this area which have influenced
the formulation of the hypothesis. The first is that the appointing
president considers the judicial philosophy of men he appoints; although
this is usually in a relatively general manner, the president may have
specific issues in mind when he appoints a judge. The second is that,
while the president may not always predict correctly, the men he appoints
will share a judicial philosophy with each other to a greater degree than
with the appointees of any other president. The literature on the first
assumption is abundant and almost unanimous; on the second less abundant
and less unanimous.

A good picture of the way in which a president examines the general
judicial philosophy of his appointees is given in Professor McHargue's
article on President Taft and his appointments to the Supreme Court (1)°
President Taft's concern with his judicial nominees "was consequent upon
his awareness that institutions are inseparable from the men who make them
up (2)." For Taft, "a close correlation of the political, social, and
economic views of appointer and appointee was a controlling factor, while
co-membership in a political party was a subsidiary consideration (3)."
The president was interested in his nominees' "real," not "nominal"
politics.

That a president can also be interested in a man's views on a specific

38
issue is best illustrated in Professor Ratner's article on President Grant
and his Court appointments (4). In it, the author shows how President
Grant was able to have a decision of the Supreme Court changed to conform
to his views. He did this by appointing two men; one of them had already
passed on the issue as a judge, the other was believed to think the correct
way on the issue. These two men joined the previous threewman minority to
form a five-man majority to produce the decision President Grant desired.

The literature on the second assumption is somewhat conflicting.
Professor Pritchett shows that, when first appointed, President Roosevelt's
appointees to the Supreme Court had high rates of agreement. However, when
they constituted a majority, they began to split (5). As their majority
began to dwindle with the arrival of President Truman's appointees, the
Roosevelt appointees tended to coalesce, although not to the degreeuthey
did when first appointed (6). President Truman's four appointees, short
of a majority, were able to dominate the Court only with the help of Justice
Reed, one of President Roosevelt's appointees. Perhaps the fact that the
Truman appointees lacked a majority explains their continued cohesiveness.

Professor Schubert has discussed cohesiveness along political
party lines on the Michigan Supreme Court (7). It is true, of course,
that the Justices on the Michigan Supreme Court are not appointed by the
governor, but elected. However, through his ability to control interim
appointments and nominations during his tenure, Governor Williams has had
virtual powers of appointment of Democratic Justices. While a minority,
Governor Williams' Justices were highly cohesive. Now, however, they are
a majority and a recent commentator (8) has noted that this newly constituted
majority is showing signs of splitting in much the same manner as did the

Roosevelt Justices on the Supreme Court.

39
Another article dealing with the behavior of Supreme Court Justices
is Professor Snyder's study of clique membership (9). She found little
relationship between appointing president and clique membership.
Thus, as was noted above, there are conflicting views on the
relationship of the appointing president and the behavior of his appointees.
With this in mind, the hypothesis for this subject is as follows:

Circuit judges appoipted‘py one pgesident will have 3 significantly higher

 

approving rate for disgrict judges appointed py the same president.

Unfortunately, the results of the study do not really resolve the
conflict in the literature; this is partly due to the lack of data for
comparison. The only president who had enough appointees to make
comparisons possible was President F. Roosevelt.

In Table 23, the circuit judges appointed by President Roosevelt
are listed with their approving rates for four groups of district judges;
"Rep." district judges are those appointed by all Republican presidents
prior to President F. Roosevelt; "FDR," "HST," and "DDE" district judges

need no explanation.

TABLE 23

APPROVING RATES OF FDR CIRCUIT JUDGES

 

District FDR Circuit Judges"
Judges Approving Rates
Rep. 59.6
FDR 79.7
HST 61.2
DDE 71.4
Average 63.6
X2: 5.39 dis 3 p.: .20

Note: The approving rate of Rep. circuit
judges for Rep. district judges is
67.8

40

There is a decided tendency for FDR circuit judges to favor FDR
district judges; the approving rates for the Rep. and HST district judges
is almost the same and much lower; what seems surprising is the rate at
which FDR circuit judges approve DDE district judges; this rate is
considerably above those for Rep. and HST district judges but does not
reach that for FDR district judges. The level of significance, however,
does not meet that set so the hypothesis must be rejected.

In the note to Table 23, the approving rate of all Rep. circuit
judges for all Rep. district judges is given; this shows that FDR circuit
judges approve FDR district judges at a higher rate than Rep. circuit
judges approve Rep. district judges. However, since no other comparisons
are possible for the Rep, circuit judges, it cannot be said that they are
or are not influenced by the appointing president as there is no evidence
either way.

In this section the effectcf the appointing president on the
approving rates of his appointees was investigated. Although a tendency

existed for circuit jpdges appointed by one president £g_favor his district

 

judges appointed by him, the tendency was not 9f great enough significance

 

 

£2_support the hypotheses.

‘41
NOTES

McHargue, Daniel S. President Taft's Appointments to the
Supreme Court. 12 J. OF POLITICS 478 (1950).

P. 47.

ya
a.

d. P. 482.

*-

Ratner, Sidney. Was the Supreme Court Packed by President Grant?
50 POL. SCI. Q. 343 (1935).

Pritchett, C. Herman. THE ROOSEVELT COURT. New York: 1948. P. 40.

Pritchett, C. Herman. CIVIL LIBERTIES AND THE VINSON COURT.
Chicago: 1954. Pp. 183-84.

Schubert, Glendon A. QUANTITATIVE ANALYSIS OF JUDICIAL BEHAVIOR.
East Lansing (Mich.): 1959. Pp. 129-42.

Downing, George L. Workmen's Compensation, 1959 Survey of Michigan
Law. 6 WAYNE L. REV. 144 (1959).

Snyder, Eloise C. The Supreme Court as a Small Group. 36 SOCIAL
FORCES 232 (1958).

42

VIII

The relationship of geography to judicial behavior has not been
investigated to any great extent. Those studies of judges which touch on
geography do so only as an aspect in the appointment of judges; they deal
only with the justices of the Supreme Court.

One of these studies is Professor Schmidhauser's collective portrait
of the justices (1). He briefly mentions the "environmental factors of
place of birth and the setting for the formative years of the justices (2)."
The emphasis is on therpopulation size of birthplace and childhood; there
is no attempt to relate this to the behavior of the justices.

Another study is Professor Ewing's book on the Supreme Court (3).
This book contains a chapter on the representation of states and sections.
There is no discussion of the behavior of judges from these sections. At
one time, Professor Ewing thought this could be done, i.e., that some
clue to a judge's rationalizations could be found in his geographic origin
and residence. (This was in his Frederick Jackson Turner period.) Of
this Professor Ewing now says:

Unhappily, each general geographical section embraces men of

almost every shade of political conviction. One cannot assume,
therefore, that a southern~derived judge represents the South any
more than that he reflects the ideas of New England or the Pacific
Coast (4).
The problem of a judge's views and whether they are representative or not
is somewhat lessened when only a single circuit is studied. In its present
form, the law provides that a circuit judge must reside in the circuit
from which appointed and remain a resident (5). District judges must

reside in the district from which appointed (6). This means that in a

relatively homogeneous circuit such as the Tenth, there should be less

43
conflict of sectional views than in the Eighth, which contains such unlike
states as Minnesota and Arkansas. An example of sectional conflict within
the Eighth is the fact that Judge Davies, from North Dakota but sitting
by assignment in Arkansas,heard the segregation case dealing with Central
High School in Little Rock. After denying motions to delay integration,
Judge Davies returned to North Dakota. The motions which followed were
heard by Judge Lemley, who was from another district in Arkansas (7).

This type of assignment within a circuit is not'unusual for, it will be
recalled, the Chief Judge of the circuit can assign any judge within the
circuit to any court within the circuit (8).

Since the available literature is meager, and ProfeSsor Ewing's
doubts loom large, the hypothesis is formulated as a null hypothesis with
the expectation that it will not be rejected.

The geographic location f §_district court will not significantly

 

 

affect the approval rates 2; its judges.

 

To test the hypothesis we turn to the data from the Tenth Circuit.
In Table 24 the district courts are listed with the approval rates for
all cases from that court regardless of which judge heard the case. Since

the level of significance is not met, the null hypothesis is not rejected.

TABLE 24

APPROVAL RATES FOR DISTRICT'OOURTS: ALL JUDGES

 

 

District Court Approval Rate
Colorado 66.6 .
.Kansas 63.9
Oklahoma '
Eastern 84.3
Northern 77.0
Western 59.2
Utah 54.5
Wyoming 66.6
Average 66.0

x2: 9.80 df: 6 p: .20

44
In Table 25 the data is presented in another way. Only those
cases were used in which judges assigned to the court on a permanent
basis sat; all cases in which a visiting judge sat were omitted. While the
level of significance rises, by comparing the two tables, it can be seen
that there is no pattern of increase or decrease in approval rates. The
level of significance is still such that the null hypothesis is not

rejected.

TABLE 25

APPROVAL RATES FOR DISTRICT COURTS: ALL ASSIGNED JUDGES

 

 

District Court Approval Rate
Colorado 61.7
Kansas 66.0
Oklahoma
Eastern 80.6
Northern 79.3
Western 58.0
Utah 47.6
Wyoming 66.6
Average 65.5
x2: 12.49 df: 6 p.: .10

In this section, the effect of the geographic location of the
district court on the approval rates of the judges who sat in it was
investigated. Since the level of significance did not meet that specified,
the null hypothesis is not rejected. The conclusion which is dggwg ii Egg;

geographic location 9: the district court does not significantly affect

 

the approval rates pf its judges.

 

 

NOTES

Schmidhauser, John R. The Justices of the Supreme Court: A
Collective Portrait. 3 MIDWEST J. OF POLI. SCI. 1 (1959).

"Id. P. 16.

Ewing, Cortez A. M. THE JUDGES OF THE SUPREME COURT, 1789-1937.

Minneapolis (Minn.): 1938.

Id. P. 7.

28 U.S.C.A. 3 44 (c) (1949).

28 U.S.C.A. S 134 (b) (Supp. 1959).

N.Y. TIMES, Apr. 10, 1958, p. 20, col. 2;‘i§.,
col. 3.

28 U.S.C.A. 3 292 (b) (Supp. 1959).

Apr. 17, 1958, p. 16,

46

IX

This study has attempted to discover patterns in the behavior of
judges on the Court of Appeals for the Tenth Circuit. The basic data
used was the vote of the circuit judge in cases before him on appeal.

These votes were translated into approving rates for the circuit judges
and approval rates for the district judges.

It was found that there was a significant difference in the approval
rates of judges in the Tenth Circuit. Significant relations between the
rates and the factors of prior judicial service, seniority, age, political
party affiliation, appointing president and geography were then investigated.
Whether the circuit judge had had prior judicial service was found to
have an effect on the fluctuation of the approving rates. Neither
seniority nor age had a significant effect on the rates of judges. Political
party affiliation generally did not affect the rates but there were some
exceptions. There was a tendency for circuit judges appointed by one
president to favor district judges appointed by him but this did not reach
levels of significance. The geographic location of a district court did

not significantly influence the rates of its judges.

47
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