POLICING IMMIGRANTS: LOCAL LAW ENFORCEMENT ON THE FRONT LINES

Vol. 26 No. 7 (November 2016) pp. 141-143

POLICING IMMIGRANTS: LOCAL LAW ENFORCEMENT ON THE FRONT LINES, by Doris Marie Provine, Monica Varsanyi, Paul G. Lewis, and Scott H Decker. Chicago: University of Chicago Press, 2016. 206pp. Cloth $75.00 IBSN: 978-0-226-36304-2

Reviewed by Rebecca Hamlin, Department of Political Science, University of Massachusetts, Amherst (rhamlin@legal.umass.edu).

This book provides a fascinating and deeply troubling window into a relatively new and thus understudied phenomenon, the increasing role of local law enforcement in implementing federal immigration policy within the borders of the United States. There are many moving parts to this story, yet the four authors make an extremely complex situation intelligible by deftly outlining the constitutional and historical landscape, and then placing the various actors and their incentives and motivations neatly within that frame. The overarching message is that while the Department of Justice claims that geographically uneven enforcement of immigration law is unconstitutional, it is increasingly rampant because of recent federal efforts to enlist local police in the task of immigration enforcement. The authors argue that layering federal immigration policy on top of state level interventions, county and city level initiatives, and widespread officer discretion results in a “multijurisdictional patchwork” (p. 3) of inconsistent and unpredictable policies that are incompatible with basic notions of justice. This claim is well supported by the authors’ presentation of both national survey data and more detailed examinations of seven cities.

POLICING IMMIGRANTS: LOCAL LAW ENFORCEMENT ON THE FRONT LINES consists of five main chapters, each with a clear purpose. Chapter Two provides a concise history of the relationship between federal, state, and local government in the making and implementing of American immigration policy. This discussion is based primarily on the secondary literature, but it is remarkably comprehensive given its brevity. The authors explain that for most of the 19th century, immigration control was totally in the hands of state and local authorities. Then, beginning with the Chinese Exclusion Acts of the 1880s, the federal government began to assert authority over the policy area. Over the course of the 20th century, the federal government increased its capacity for enforcement, both at the border and internally, via raids. Federal authority went relatively unchallenged by the states until the 1990s, when the issue of illegal immigration gained political traction in many states, and gradually two simultaneous processes resulted. First, the federal government began to reach out to local law enforcement agencies to assist with immigration policy, and second, states began to pass their own immigration policies for the first time in over a century. Both of these activities gained momentum as federal failure to pass comprehensive immigration reform became a protracted reality.

IMMIGRATION JUDGES AND U.S. ASYLUM POLICY

Vol. 26 No. 7 (November 2016) pp. 138-140

IMMIGRATION JUDGES AND U.S. ASYLUM POLICY, by Banks Miller, Linda Camp Keith, and Jennifer S. Holmes. Philadelphia: University of Pennsylvania Press, 2015. 248pp. Cloth $69.95. ISBN: 978-0-8122-4660-5. Ebook $69.95. ISBN: 978-0-8122-9037-0.

Reviewed by Rebecca D. Gill, Department of Political Science, University of Nevada, Las Vegas. Email: rebecca.gill@unlv.edu.

In IMMIGRATION JUDGES AND U.S. ASYLUM POLICY, authors Banks Miller, Linda Camp Keith, and Jennifer S. Holmes undertake an enormous task. They attempt to develop a wide-ranging, data-driven understanding of the administrative decision-making processes surrounding petitions for asylum in the United States. What results is the most comprehensive empirical study of American immigration judges to date. Although this book may be difficult reading for lay audiences, it is undoubtedly a critical contribution to our scholarly and practical understanding of this important administrative process.

The breadth of the analysis in this book is made possible by the extraordinary efforts of the authors to generate an original dataset of over half a million asylum cases between 1990 and 2010. The scope of this project is truly breathtaking. Using these data, the authors develop and test what they call a “cognitive” model of immigration adjudication, upon which they build a number of empirical analyses to test various attitudinal, strategic, and contextual hypotheses about the decision making process. Overall, they find that asylum decisions are driven largely by the policy predispositions of the Immigration Judges (IJs), along with a variety of other factual and contextual elements.

Chapters 1 and 2 of the book serve as an introduction to the project. Here, the authors provide a thorough, no-nonsense overview of the asylum process in the United States. The authors establish a strong case for studying the work of IJs, particularly their decision making processes in asylum cases. In Chapter 2, the authors turn their focus to the database they have created. In itself, this dataset is a critical contribution to the discipline, especially since they have made their dataset publicly available. Although the links given in the book do not lead to the replication data, interested readers can find these data and the online appendices using a Google search for the first author’s Dataverse page.

The analyses in the book rely upon two key operational measures: the nature of relief granted the petitioner and the ideology of the individual IJs. The authors eschew the relief/no relief dichotomy in favor of a four-level ordinal variable: no relief, withholding of removal under the Convention Against Torture (CAT), withholding of removal (not under CAT), and a grant of asylum. However, the IJs generally do not have the ability to choose among this array of options, except in the rare case that the litigant applied for relief under all three grounds. I consider this a minor quibble, given the fact that these two “middle” options make up such a small fraction of the data. However, I take this fact as an indication that the judges are not free to choose. If they could, would not many more of the IJs choose one of these in-between categories of relief?

THE RIGHT’S FIRST AMENDMENT: THE POLITICS OF FREE SPEECH AND THE RETURN OF CONSERVATIVE LIBERTARIANISM

Vol. 26 No. 7 (November 2016) pp. 132-137

THE RIGHT’S FIRST AMENDMENT: THE POLITICS OF FREE SPEECH AND THE RETURN OF CONSERVATIVE LIBERTARIANISM, by Wayne Batchis. Stanford: Stanford University Press, 2016. 296 pp. Paper $29.95. ISBN: 978-0-8047-9801-6.

Reviewed by Ken I. Kersch, Department of Political Science, Boston College. Email: kersch@bc.edu.

After what now seems like a perversely protracted refusal by scholars, first, to take modern conservatism seriously as the subject of scholarly inquiry and, second, to attempt to apprehend and explicate it dispassionately on its own terms, rather than as a strawman for showcasing their own posturings and prejudices, there has emerged, in the last decade or so, an avalanche of excellent studies of American conservatism by a talented scholars from an array of academic disciplines, more than making up for lost time. Predictably, in constitutional law and history, one line of that scholarship began by whiggishly tracing contemporary conservative “originalism” backwards from seedtime to the reaping of Robert Bork, Raoul Berger, Edwin Meese, and Antonin Scalia. More sophisticated recent work – which now includes Wayne Batchis’s THE RIGHT’S FIRST AMENDMENT – allows for the possibility that, when looked at over the long term, none of what were once assumed to be defining dimensions of constitutional conservatism, whether a fidelity to “original meaning,” a skepticism about “rights talk,” or an insistence on “judicial restraint,” were either consistently practiced by conservatives, or even argued for: the movement was pluralistic, and constitutional conservatism’s core commitments as we know them today were contested and hard-fought.

Instead of starting with a presumption of what the conservative position would or should be, Batchis takes the straightforward but (oddly) unusual approach of simply asking what it is that self-identified conservatives said over time about the nature, implications, and scope of the First Amendment’s requirement that “Congress shall make no law … abridging the freedom of speech.” Creatively and appropriately – but, again, a bit unusually – Batchis undertakes his empirical examination in two spheres. The first surveys conservative constitutional argument in the public sphere, with special attention to arguments advanced in postwar conservatism’s flagship, crossroads journal, William F. Buckley Jr.’s NATIONAL REVIEW (“NR”) (founded in 1955). The second surveys and anatomizes conservative constitutional arguments by the U.S. Supreme Court’s conservative justices. Batchis asks an array of questions about the character and trajectory of free speech arguments in each of these spheres separately, and about the relationship between arguments in one sphere and those in the other. He finds variety, disagreement, nuance, and development. Batchis’s ultimate thesis is that, over time, the conservative movement, reacting to, reflecting upon, and strategizing in response to particular political controversies and intra-movement ideological trends (campus political correctness and free-market libertarianism, respectively), transformed itself into a strident advocate for, and defender of, latitudinarian understandings of the freedom of speech.

Batchis’s introductory chapter rightly emphasizes that there was no fixed relationship over the long term between what was understood in a particular epoch as “conservative” as a political ideology or disposition, and permissive or latitudinarian understandings of free speech. Adducing pioneering studies by Mark Graber, David Rabban, and others of Gilded Age “conservative libertarianism,” Batchis reminds us that many of that era’s rights-based individualists championed the freedom of speech alongside their better-known (“conservative”) defenses of contract and property rights (Batchis might have underlined, as well that many of the era’s pre-liberal progressives took the opposite position on both (Kersch 2004)). At the same time, before and after, “moralistic conservatives” consistently championed the vigorous exercise of state and local government [*133] police powers to promote public health, safety, and morals, including the aggressive regulation of speech that had a “bad tendency” (again, an approach they typically shared with their political/ideological opponents) (p. 2). Batchis’s focus, however, is on a slightly later conservatism still within in living memory: the more moralistic or virtue-centered conservative argument calling for active government policing of speech, as advanced, typically, by Christian conservatives (mainstream, evangelical, and Roman Catholic), key neoconservatives, and national security-minded Cold War anti-communists. Here, enlisting recent work by the political psychologist Jonathan Haidt (Haidt 2012), Batchis emphasizes the special conservative regard for, amongst other values, “loyalty,” “authority,” and “sanctity” (p. 9).

THE BURGER COURT AND THE RISE OF THE JUDICIAL RIGHT

Vol. 26 No. 7 (November 2016) pp. 129-131

THE BURGER COURT AND THE RISE OF THE JUDICIAL RIGHT, by Michael J. Graetz and Linda Greenhouse. New York: Simon & Schuster, 2016. 468 pp. Cloth $30.00. ISBN 978-1-4767-3250-3.

Reviewed by Calvin TerBeek, Department of Political Science, University of Chicago. Email: cterbeek@uchicago.edu

This is a good book aimed at multiple audiences. On one level it is directed at educated lay readers, it contains thumbnail sketches of the relevant justices, and includes a short primer on “Supreme Court procedure.” But the book also aims to make a novel argument about the Burger Court. Contrary to the conventional wisdom viewing the Burger Court as merely transitional (White 2007) or a “counter-revolution that wasn’t” (Blasi 1983), Graetz and Greenhouse argue that Warren Court precedents “were dramatically diminished in scope and impact” (p. 15) by the time Burger ceded the center seat to William Rehnquist in 1986. The implication is this: much of the work done by the undeniably conservative Rehnquist and Roberts Courts was simply extending decisions made by the Burger Court.

In order to support this claim, the book samples the Burger Court’s major decisions from the death penalty, criminal procedure, racial discrimination, affirmative action, abortion, gender discrimination, religion, speech (with a focus on commercial and corporate speech), to President Nixon’s travails vis-à-vis Watergate. While most of this will be old hat to legal academics and political scientists who study judicial politics, scholars and veteran Court watchers will find the fruits of Graetz and Greenhouse’s archival work rewarding. For example, Justice Powell’s papers show him wrestling with his self-admitted “confederate emotions” (p. 89) in the 1973 school segregation case KEYES V. SCHOOL DISTRICT NO. 1. And we learn of Justice Blackmun’s characterization of a brief penned by Ruth Bader Ginsburg as “mildly offensive and arrogant” (p. 166) while simultaneously admitting Ginsburg had the better of the argument. The book also admirably places the Burger Court’s decisions in the larger political and cultural climate rather than simply consisting of a rote review of opinions, concurrences, and dissents. It is also stocked with interesting, and telling, anecdotes such as Robert Bork’s op-ed response to REGENTS OF CALIFORNIA V. BAKKE (1978) – he accused the justices, among others, of being “hard-core racists of reverse discrimination” (p. 122) – and we are reminded the undue burden test so derided by conservatives was cribbed from Reagan Solicitor General Rex E. Lee’s brief by Justice Sandra O’Connor in AKRON V. AKRON CENTER FOR REPRODUCTIVE HEALTH (1983) (eventually finding its way into the joint opinion in CASEY (1992)). Finally, the book corrects the still too common perception that the “backlash” to ROE V. WADE (1973) was swift and certain (it wasn’t); indeed, here the book is at its best, telling a complex story deftly and drawing on political science, historiography, and Greenhouse’s previous work with Reva Siegel.

RECALIBRATING REFORM: THE LIMITS OF POLITICAL CHANGE

Vol. 26 No. 7 (November 2016) pp. 125-128

RECALIBRATING REFORM: THE LIMITS OF POLITICAL CHANGE, by Stuart Chinn. Cambridge: Cambridge University Press, 2014. 351 pp. Cloth/Paper $95.00. ISBN: 978-1-107-05753-1.

Reviewed by Miranda Yaver, Yale University. Email: miranda.yaver@yale.edu

Several decades of political science and legal scholarship has probed in various ways the forces shaping law and policy in the American separation of powers system, whether evaluating the congressional decisions of legislative design or the social forces shaping the rendering of legal judgments, to name just a couple of such strands of thought. These efforts have paved the way toward a deeper understanding of the ways in which inter-branch interactions shape the crafting of contemporary regulatory law and policy. Yet importantly, the modal analyses have emphasized the inputs of policy, largely (and sadly) to the exclusion of their ultimate implementation, a limitation that Stuart Chinn’s RECALIBRATING REFORM: THE LIMITS OF POLITICAL CHANGE crucially works to remedy.

Chinn raises important questions centered on the aftermath of legal reforms, and the dynamic processes that shape these reforms’ patterns and persistence. In doing so, he considers both the possibilities for major policy change and the limits on the reaches of those reforms. His study brings to light key oversights in the political science and legal literatures, which largely emphasize the initial disruptions and processes preceding policy changes, the details of whose precise formation and ultimate implementation we know far too little about. While some scholars (e.g., Hacker 2004) have sought to address the politics of retrenchment in recent decades, few have carried the policymaking story all the way through to understand the ultimate consequences of how policies are initially structured, how other institutions respond, and what policies emerge through those processes (however, see Patashnik 2008). This scarcity of scholarly attention leaves us unable to answer important questions such as to what extent, and under what conditions, institutions can carve out new rights in ways that will be more or less durable. Yet as Chinn notes, if Tocqueville was correct in viewing American law as being inherently conservative in nature, there is ample reason to suggest that attempted radical policy changes might in fact be tempered post-enactment (p. 5).

Of course, one prominent reason for this scarcity of scholarship is the sheer complexity of understanding properly the post-enactment processes that yield the substantive policy outcomes that we ultimately observe. Both the dynamic compositions of political preferences over time, as well as the institutional prerogatives of the branches for autonomy and influence, contribute toward potential disconnects between de jure law and the observable de facto policy. While interest groups may lobby persuasively and members of Congress may craft law with great ambition toward policy change, legal forces and a potential judicial predisposition toward stability may, as Chinn argues, limit the outer bounds of reforms as these policy changes are carried into effect. And given the challenges stemming from political uncertainty and the complexity inherent in American lawmaking, the relative inattention to these processes is indeed striking.

THE POLITICS OF JUDICIAL INDEPENDENCE IN THE UK’S CHANGING CONSTITUTION

Vol. 26 No. 6 (October 2016) pp. 121- 124

THE POLITICS OF JUDICIAL INDEPENDENCE IN THE UK’S CHANGING CONSTITUTION by Graham Gee, Robert Hazell, Kate Malleson, and Patrick O’Brien. Cambridge: Cambridge University Press, 2015. 293pp. Cloth $99.00. ISBN: 978-1-107-06695-3.

Reviewed by Benjamin Bricker, Department of Political Science, Southern Illinois University Carbondale. Email: brickeb@siu.edu.

THE POLITICS OF JUDICIAL INDEPENDENCE IN THE UK’S CHANGING CONSTITUTION captures an important point, one that might have been missed by many non-UK watchers: the country’s judicial system has experienced massive change over the past decade, driven largely – but not completely – by the Constitutional Reform Act (CRA) of 2005. Wholly new institutions have been created, perhaps most notably the establishment of the new UK Supreme Court. Yet the changes do not end there. Judicial appointment procedures have changed from an informal, clubby old-school-ties network to one that is now highly regulated by statute. The old duties of the Lord Chancellor, a public office straddling the executive, legislative, and judicial branches that oversaw the judicial system from the British cabinet, have been radically reformed, as well. It is in this environment of tumultuous transformation that Gee, Hazell, Malleson, and O’Brien examine the evolution and change of what they term “the politics of judicial independence” in the United Kingdom (p. 1).

Using over 150 confidential interviews with judges, politicians, and civil servants in various levels of the UK political, judicial, and civil service systems, the authors examine the evolving and increasingly formal relationship between the judicial and the political realms of government. This major empirical undertaking was carried out between 2011 and 2013 – well into the period of change described in the book. The use of elite interviews from all areas of government is significant to their overall focus: the authors’ main premise is that judicial independence is a political achievement and must properly be understood as a part of politics – not apart from politics (p. 9).

Studying the day-to-day interactions of the judicial and political branches has real benefits for the study of courts and judicial independence. The authors note that too often discussions of judicial independence and accountability are focused on the relatively rare instances of conflict between politicians and judicial branch: limiting judicial salaries, curbing court jurisdiction, or impeaching judges (p. 92). Since most of the work of creating and, particularly, maintaining judicial independence is done informally through reasoned discussion among the branches of government, focusing on these day-to-day interactions offers a broader, more comprehensive examination of political efforts to both advance and limit judicial independence.

The authors begin by describing their conception of judicial independence and accountability, and how these dual concepts fit into their larger argument. To outsiders, the concept of judicial independence in Britain can be a difficult mix of both autonomy and subservience. In the traditional story, the English common law courts won their independence from the Monarchy after the Glorious Revolution in 1688. Yet, the model of parliamentary supremacy that arose from 1688 also meant that the courts ultimately were answerable to parliament (see Shapiro 1981). Thus, for many years, judicial decisions were subject to ultimate review by the Law Lords, a committee within the upper house of parliament that sat as the ultimate appellate body for law and jurisprudence.

THE TROUBLE WITH LAWYERS

Vol. 26 No. 6 (October 2016) pp. 117-120

THE TROUBLE WITH LAWYERS, by Deborah L. Rhode. Oxford: Oxford University Press, 2015. 248pp. Cloth $29.95 ISBN: 978-0190217228.

Reviewed by Alyx Mark, Department of Political Science, North Central College; Visiting Scholar, American Bar Foundation. Email: admark@noctrl.edu.

In her latest book on the subject, Deborah L. Rhode provides those interested in the legal profession with a valuable synthesis of the many consequences of lawyers’ monopoly on the practice of law. Rhode demonstrates that there are far-reaching implications for those seeking legal remedy, prospective and current law students, innovation in the field, as well as for the institutions and individuals within the profession itself. On the whole, THE TROUBLE WITH LAWYERS delivers a well-researched set of criticisms about the profession. Although Rhode provides some brief comparisons between the American system and innovations abroad, the book is largely a vehicle for proposals for future research and practical reforms.

In Chapter 2, the first substantive chapter, Rhode introduces the reader to the causes and consequences of lawyer satisfaction (and dissatisfaction) with the profession. She proposes that changes in the practice of law since the 1960s, including the increasing size of firms and the competition between them, have led to increasing pressures on lawyers from firms and the broader legal environment. What results is a greater focus on billable hours, an easily quantifiable measure of productivity. Rhode suggests this cultural shift leads to work-life imbalance and professional dissatisfaction – with little incentive for any single lawyer to call for reform.

Rhode transitions to a discussion of lawyers’ evaluation of professional satisfaction, which provides the reader with an overview of all of the forthcoming chapters of the book. Lawyers are generally more dissatisfied with their positions when they are at large firms and do not engage in much pro bono work. Rhode also suggests that students from elite law schools may be more dissatisfied with their positions than those from lower ranked schools because there is a mismatch between what they learn from doctrinal professors and what “real life” looks like in a firm. This leads her to propose some avenues for future study, including better measurement and monitoring of the factors that contribute to lawyer satisfaction as well as scholarship that seeks to demystify the profession for law students.

In Chapter 3, Rhode begins to address her criticisms with the profession that arise from the factors contributing to lawyer dissatisfaction with the field. She first focuses on the justice gap, a perennial puzzle for access to justice scholars. Rhode asks, with a glut of lawyers and law students seeking employment and professional experience, why are so few people with legal problems able to seek remedy with the help of a professional? Because the American system is split in terms of the services offered for criminal defense and civil justice problems, Rhode addresses them separately, and offers proposals for additional research and reform.

AFTER MARRIAGE EQUALITY: THE FUTURE OF LGBT RIGHTS

Vol. 26 No. 6 (October 2016) pp. 114-116

AFTER MARRIAGE EQUALITY: THE FUTURE OF LGBT RIGHTS, by Carlos A. Ball (ed). New York: New York University Press, 2016. 357 pp. Cloth $45.00. ISBN: 1-4798-8308-5.

Reviewed by Daniel R. Pinello, Department of Political Science, John Jay College of Criminal Justice of the City University of New York.

To those Americans who thought OBERGEFELL V. HODGES marked the pinnacle of success for the LGBT-rights movement, as well as to those marriage equality activists and supporters who looked forward to resting on their laurels: Guess again. Carlos A. Ball and the dozen other distinguished contributors to AFTER MARRIAGE EQUALITY: THE FUTURE OF LGBT RIGHTS are here to convince you that the fight for full queer rights and recognition has just begun. Batten down the hatches.

According to these authors, a comprehensive agenda for achieving thorough LGBT rights in the United States and elsewhere includes these Top Ten outstanding goals:

1. Securing statewide legal protections against sexual-orientation discrimination in employment, housing, and public accommodations in 28 jurisdictions: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, and Wyoming.

2. As an alternative to #1, persuading Congress and the President to amend the Civil Rights Act of 1964 to include sexual orientation among the landmark legislation’s covered categories. Without federal or state antidiscrimination security, same-sex couples could legally marry and subsequently be fired from their jobs once word spread about their wedding and “outed” them at work.

3. As a complement to the above, curing the dearth of legal safeguards surrounding gender identity and expression and other sexual multiplicities. Just nineteen states today prohibit discrimination against trans people in the workplace, while only half allow individuals who have undergone medical treatment for transitioning to amend their birth certificates in order to reflect gender modification.

VAGRANT NATION: POLICE POWER, CONSTITUTIONAL CHANGE, AND THE MAKING OF THE 1960S

Vol. 26 No. 6 (October 2016) pp. 108-113

VAGRANT NATION: POLICE POWER, CONSTITUTIONAL CHANGE, AND THE MAKING OF THE 1960S, by Risa Goluboff. 480pp. New York: Oxford University Press, 2016. Cloth $34.95. ISBN 9780199768448.

Reviewed by Paul E. Parker, Department of Political Science, Truman State University. Email: parker@truman.edu

Legal historian Risa Goluboff has written an engaging and important story of social and legal change. In a decentralized nation, state police powers, to regulate for the welfare and morals of the community, provided local authorities with far reaching power, and discretion regarding how to use it. Statutes criminalizing vagrancy and loitering were used as a form of social control against political outsiders – radicals, blacks, prostitutes, gays, hippies, protestors, and transgressive women. Beginning in the 1930s, lawyers strategized how to limit this discretionary power, and by the early 1970s the hydraulic pressure of social and legal change was so great that vagrancy statutes were struck by the U.S. Supreme Court.

PAPACHRISTOU V. JACKSONVILLE (1973) was the culmination of legal scheming and litigation that created a body of precedent too large for the Burger Court to ignore. The heroes of Goluboff’s story are attorneys and law professors who created the legal theory and strategies to challenge the statutes and police practices. They competed and collaborated in trying different tactics, and extended a success from one type of person or behavior to another. The litigants are often vehicles for the aspirations of the attorneys – none more so than Lorraine Papachristou, whose attorney did not recognize her when she waited his table, and whose main concern was whether she was going to have to serve her 10 days in jail if the Supreme Court ruled adversely (pp. 331-32).

Across nine chapters, Goluboff weaves in other doctrinal developments in U.S. law, and indeed, this is part of her thesis: where we often see disparate lines of legal development, we should see relation and convergence. Vagrancy charges were useful in policing public space to discourage or remove unwanted individuals, whether poor, black, gay, or countercultural, and also useful in undercutting social change movements of workers, civil rights activists, and anti-war protestors. The very flexibility of the statutes authorized unchecked police authority, and frustrated civil libertarians. Meanwhile, the erosion of vagrancy law was connected to legal developments in free speech, equal protection, and the revolution in due process. Former outsiders became citizens.

DIVERSITY MATTERS: JUDICIAL POLICY MAKING IN THE U.S. COURTS OF APPEALS

Vol. 26 No. 6 (October 106) pp. 106-107

DIVERSITY MATTERS: JUDICIAL POLICY MAKING IN THE U.S. COURTS OF APPEALS, by Susan B. Haire and Laura P. Moyer. Charlottesville and London: University of Virginia Press, 2015. 216 pp. Cloth $45.00. ISBN 978-0-8139-3718-2.

Reviewed by Erin B. Kaheny, Department of Political Science, University of Wisconsin-Milwaukee. E-mail: ekaheny@uwm.edu.

Professors Susan Haire and Laura Moyer address a variety of issues pertaining to the influence of both gender and race diversity in the context of the U.S. Courts of Appeals. As they put it, their book investigates “how diversity has affected the behavior of judges as individuals and as groups, and whether it has had a measurable impact on legal outputs and the content of law” (p. 6).

There is not one overarching theoretical structure that pieces together the various chapters and the many analyses found therein. Rather, Haire and Moyer introduce theories within each chapter that suggest testable hypotheses with respect to the trait/s and context being assessed. Analyses are informed by “social identity theory” (p. 14) and understandings of “socialization” (p. 34), “implicit biases” (p. 43-44), “intersectionality” (p. 55), “marginalization” (p. 67-68), “performance expectations” (p. 67 and p. 84) or “expectation states” (pp. 83-84),“superadditivity” (p. 84-85), “critical mass” (p. 100) and “critical actors” (p. 106-107). In addition, while the authors make excellent use of an updated dataset in several statistical studies, insight into the significance of judge race and/or gender is also developed through the assessment of historical background material, including the judges’ oral histories.

The first chapter, for example, begins with a review of the appointment of minority judges. Haire and Moyer also explore differences in the voting behavior among African American, Latino, and white judges in both bivariate and multivariate settings. Multivariate models are further run across a few broad issue categories. “African American judges,” they reveal, “were substantially more likely … to support the position of a plaintiff” in the “race discrimination” category (p. 32). “In distributive politics cases,” they report, “Latino judges are slightly more likely to support the economically disadvantaged litigant” (p. 31).