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

Justice System Journal, 2003 by Buchman, Jeremy

The current debate over whether to split the Ninth Circuit provides a telling example of how electoral concerns interact with policy-related concerns in the context of judicial reform.3 The Ninth Circuit is the largest federal appellate circuit, and size can present jurisprudential problems (achieving sufficient uniformity of law within a large and ideologically heterogeneous court), as well as logistical difficulties (scheduling en banc hearings when judges are separated by wide distances).4 However, the dispute over splitting the Ninth Circuit has been long-running and substantively noteworthy not because of intractable technical concerns but because of the perceived impacts on partisan political actors. Circuit-splitting holds potential electoral significance for legislators, in that key constituents or interest groups might prefer to litigate within a circuit that tilts toward their ideological or specific policy preferences. With regard to the Ninth Circuit in particular, a crucial motivation behind circuit-splitting proposals is the desire of conservatives and groups representing extractive industries in the Pacific Northwest states to avoid having cases heard by California judges, whom these conservatives perceive to be more liberal than their counterparts elsewhere in the circuit.5 Circuit-splitting does possess a technocratic policy dimension, but it is telling that so much legislative debate conearning the Ninth Circuit has centered around appeals that could be viewed as constituent-specific.

To sum up, legislators have nonelectoral as well as electoral motivations to take an interest in judicial structure. When the two come into conflict, though, we should expect the latter to be more salient to lawmakers. Under either view of legislative motivation, judicial lobbying can play a significant role, be it to inform legislators of the probable policy consequences of a proposal, or to notify them of issues that might bring interest groups or constituents into the fray. The next section addresses lawmakers' responses to such lobbying.

Why Legislators Might Accede to Judicial Requests for Structural Reform

Legislators, whether motivated by interest groups' demands, their own policy interests, or some combination of the two, have incentives to care about issues related to judicial structure, despite their low salience to the public at large. There is still the question, however, of why legislators accede to federal judges' requests for structural reforms. In this section, I discuss three explanations for legislative acquiescence.

1. Legislators might accede to judges' desires out of a shared interest in the effective operation of the judicial system. Inefficiencies in the legal system contribute to growing caseloads and greater demands on judges, as noted earlier. Therefore, it is not surprising to observe that a variety of judicial lobbying efforts have sought to enhance the efficiency of judicial processes. In this account, legislators who especially value efficiency would be inclined to accede to judges' requests.