Judicial lobbying and the politics of judicial structure: An examination of the Judiciary Act of 1925*

Justice System Journal, 2003 by Buchman, Jeremy

One need not treat legislators as "single-minded seekers of reelection" (Mayhew, 1974:5) to believe that electoral needs motivate a significant amount of legislative behavior (Fenno, 1978; Mayhew, 1974). For example, legislators often pursue committee assignments that enable them to lavish benefits on constituents (Fenno, 1973; Shepsle, 1978; Loomis, 1996), and they craft their agendas so as to reflect at least some of the policy priorities of their constituents (Kingdon, 1984). Legislators' interests in judicial structure, by this account, reflect pressures from actors relevant to their electoral fortunes: individual constituents, interest groups, and campaign contributors. Actors who are adversely affected by delays resulting from backlogged trial courts, or who perceive some structural change as beneficial on balance to their long-term interests, would pull the "fire alarm" (McCubbins and Schwartz, 1984), much as they would do when administrative agencies act contrary to their interests. The concepts just noted were developed to explain modern-day legislative behavior, and in applying these concepts to the behavior of Congress circa 1923-24, one must be careful to avoid anachronism. However, even if electoral motivations were not as central in the 1920s as they are now, we would still expect to see legislators with any interest in reelection act in ways that will further their electoral needs.

While most constituents have no interest in procedural minutiae, interest groups have a stronger motivation to care about such matters. They recognize the ways in which procedural and other structural changes can facilitate or hinder the achievement of policy objectives; in Moe's (1989:269) words, interest groups "know that their policy goals are crucially dependent on precisely those fine details of administrative structure that cause voters' eyes to glaze over." To further their preferred ends, interest groups supply both technical and political information; track legislators' behavior and voting records at all stages of the legislative process; and, based on their assessments of legislators' fidelity to the cause, decide where to direct campaign contributions, supply volunteers, and buy advertising. Unlike even the most engaged voters, interest groups have reasons to take positions on proposed structural changes, such as creation of a national court of appeals and division of the Ninth Circuit. Moreover, interest groups have ample opportunity to influence legislative decisions related to judicial functioning, from scrutinizing potential judges to lobbying for procedural change on behalf of specific causes, such as tort reform and criminal sentencing.

While much legislative behavior can be explained in terms of its expected electoral payoff, some activities cannot be assessed in such a manner (Fenno, 1978; Hall, 1996; Kingdon, 1989). This is especially true of legislators who have announced their plans to retire and, as a result, are unconstrained by electoral concerns. Members often develop specialized expertise far beyond what is needed for garden-variety position-taking (Hall, 1996:68-71), and they sometimes pursue subjects, such as foreign policy, that do not especially concern their constituents. Such learning is encouraged by the congressional committee system, which bestows advantages upon those who cultivate specialized knowledge (Krehbiel, 1991). For an issue lacking obvious electoral salience, then, some legislators will be motivated to develop expertise and adopt that issue as their own. Other legislators might take cues from their more knowledgeable colleagues, but whether their colleagues' views weigh more heavily than the anticipated impact on their electoral fortunes is another matter.