U.S. ATTORNEYS, POLITICAL CONTROL, AND CAREER AMBITION

Vol. 30 No. 1 (January 2020) pp. 12-17

U.S. ATTORNEYS, POLITICAL CONTROL, and CAREER AMBITION, by Banks Miller and Brett Curry. New York: Oxford University Press, 2019. 201pp. Cloth $64.00. ISBN: 978019092824.

Reviewed by Virginia Hettinger, Department of Political Science. University of Connecticut. Email: virginia.hettinger@uconn.edu.

U.S. ATTORNEYS, POLITICAL CONTROL, and CAREER AMBITION offers a well written and extensively researched account of the complexity and fundamentally political nature of the work and careers of United States Attorneys (USAs). The authors combine well-placed stories of USAs, compelling arguments for employing various theoretical lenses, and rigorous quantitative approaches to explore case filing decisions, sentencing outcomes, and post-USA career moves. It is an ambitious work. Perhaps, in places, too ambitious for the space available. The result is that the reader ends up sometimes frustrated, but always more curious, about the subject and leaving your reader more interested and more curious is a good problem to have. 

Banks Miller and Brett Curry begin by telling two stories that illustrate the discretion that U.S. Attorneys enjoy in implementing the enforcement of federal law. Both examples prove to be cautionary because they end with Supreme Court reversing parts of both convictions and criticizing the excessive prosecutorial zeal present in both cases. The rest of the introduction provides a brief history of U.S. Attorneys. The history again emphasizes the discretion that U.S. Attorneys possess but also notes that leaders in the Department of Justice (DOJ) have sought greater control and increased centralization since the DOJ was created in 1870. 

The second chapter of the book provides three more extensive case studies to illustrate efforts at centralizing control over USAs. The first focuses on the Reconstruction period and efforts by the president and other executive branch figures to increase the enforcement of civil rights. The emergence of the DOJ in 1870 led to increased centralization, greater emphasis on prioritizing some types of prosecutions for electoral purposes, and increased politicization of who would serve as USAs. The second case study focuses on the savings and loan crisis of the 1980s and 1990s. Congress and the DOJ played key roles in driving the prosecution of financial fraud by strengthening statutes and providing additional resources to USA offices. The last case study examines [*13] the George W. Bush administration’s dismissal of nine USAs in 2006. Miller and Curry conclude that “both political circumstances and performance metrics were predictive of the USAs who are ultimately directed to resign” (p. 39). In this chapter, Miller and Curry begin to describe those who attempt to control USAs as principals from a principal-agent theory perspective. 

Chapter 3 provides a thorough and careful explanation of principal-agent theory. Drawing on the narratives in Chapters 1 and 2, Miller and Curry make a compelling case for the value of principal-agent theory in understanding U.S. Attorneys. They begin by establishing that U.S. Attorneys face multiple principals. At the national level, Congress and the executive branch act as principals attempting to control the behavior of the U.S. Attorneys. Local officials, District Court judges, and local political ideologies may also influence U.S. Attorneys. The authors also identify the ways principals might convey their goals to the USAs including presidential statements and Congressional oversight hearings. Additionally, Miller and Curry identify other important factors in the federal criminal prosecution. The complexity of cases is not constant across all issue areas, which makes it more difficult for principals to monitor USAs in some issue areas. There are also multiple ways to measure whether U.S. Attorneys are adhering to the priorities of their various principals. Miller and Curry describe outputs and outcomes; outputs are defined as the “the effort made in filing cases” (p. 52) while outcomes are captured by monitoring convictions or sentence length. Finally, Miller and Curry introduce ambition theory. U.S. Attorneys recognize the short-term nature of their position as U.S. Attorneys. Some USAs might seek vertical advancement (movement to higher level positions within the executive branch) and others might seek diagonal advancement (movement to high prestige positions in the private sector). Diagonal career goals might increase a U.S. Attorney’s propensity to shirk the priorities of national principals. By the end of the chapter Miller and Curry have created a rich and convincing framework for understanding the behavior of USAs. The authors paint a picture of legal professionals with their own beliefs and priorities who may be monitored and constrained by principals at the local and national level. The USAs enforce the law across a wide range of legal issues with varying levels of complexity in terms of both obtaining convictions and the feasibility of successful monitoring. They do all of this with varying long-term career goals and the understanding that their short- and long-term success can be conditioned by these factors and the interactions of these factors. [*14]

Chapter 4 explains the major data sources. Miller and Curry use DOJ data compiled in the Transactional Records Access Clearinghouse at Syracuse, the Public Papers of the President, and their own data on post tenure placements. They provide descriptive statistics and graphical displays of variations in the five issue areas-immigration, narcotics, terrorism, weapons, and white-collar crime. They assess each issue area for workload, and define expectations for salience, complexity, and ideological preferences in each issue area. Case filings and sentence length are examined cross sectionally and over time. Narcotics cases make up the biggest portion of the case load even though drug enforcement jurisdiction overlaps with state jurisdiction. Terrorism is the smallest. Immigration caseloads vary greatly by district. Immigration, narcotics, and weapons cases showed increasing centralization over time. Terrorism and white-collar cases showed a decrease in centralization over time.



CONSERVATIVE INNOVATORS: HOW STATES ARE CHALLENGING FEDERAL POWER

Vol. 30 No. 1 (January 2020) pp. 6-11



CONSERVATIVE INNOVATORS: HOW STATES ARE CHALLENGING FEDERAL POWER, by Ben Merriman. University of Chicago Press, 2019. 232pp. Cloth $105.00. ISBN: 9780226620312.

Reviewed by Benjamin Kassow, Department of Political Science and Public Administration, University of North Dakota. Email: Benjamin.kassow@und.edu.

Overall, Benjamin Merriman’s book CONSERVATIVE INNOVATORS: HOW STATES ARE CHALLENGING FEDERAL POWER is a must read for three reasons. First, the book describes in considerable detail and nuance a recent change in intergovernmental relations; that is, the ability and interest of states to be able to effectively defy the federal government-federal bureaucracy, in particular against policies created by the executive branch that they may not agree with. Second, the book lays out an interesting discussion as to why these changes have largely occurred in the past ten to fifteen years. Third, the book contains three rich examples of areas of policy where conservative state executives have attempted to retrieve power from the federal government: the Balanced Budget Amendment, an increasing role for states with regard to voter rights, and a wide variety of policies, focusing most broadly on the Office of the Repealer in Kansas under the Brownback administration.

As is the norm, the first chapter focuses primarily on addressing the proverbial “so-what” question, and why readers should care about the rest of the book. This chapter centers around how recent history has changed the relationship between the federal government and state governments by addressing the historical relationship between the federal government and state governments over an extended period of time. It also discusses federal governmental issues that encouraged an increase of power to the executive branch, resulting in increased degrees of Congressional delegation to the executive branch (Kerwin and Furlong 2011) and a larger focus on the federal budget as a primary issue for Congress to address (see Sinclair 2011). The chapter concludes by laying out what will be discussed in the remaining chapters in a rather extensive way. [*7]

The second chapter builds off Chuck Epp’s conceptual idea of the importance of support structures for creating legal change, but shifts it in a rather different direction compared with THE RIGHTS REVOLUTION (Epp 1998). Merriman argues that three changes to conservative legal support structures in recent decades have made it easier to implement legal change, stating early in Chapter 2 that, “Whenever there has been intergovernmental friction or disagreement in recent years, multi-state litigation has rarely been far behind” (p. 30). Merriman notes the critical importance of multi-state litigation and an increased degree of professionalization in state attorney general (SAG) offices for allowing this movement towards challenging the validity and/or applicability of federal regulations and executive orders. Additionally, the Supreme Court in recent years has become increasingly receptive to limiting precedents such as CHEVRON that grant a relatively high discretion to federal agencies with regards to rulemaking in the absence of a clear Congressional mandate (see MASSACHUSETTS V. EPA, 2007, as an example of this). Finally, with more Republicans controlling SAG offices in states, an increased availability of resources towards conservative movements is now available compared to the past, when more of these offices were controlled by Democrats. This general framework makes sense and is not one that is restricted to one party (Democrats could use these same tools and advantages into the future).

Chapter 3 conceptualizes state “defiance” towards federalism, in what Merriman terms “uncooperative federalism.” While the chapter highlights to a large extent on how states have defied federal policy both by refusing federal dollars to implement desired policy and through the creation of interstate compacts, the chapter focuses more so on how interstate compacts facilitate things like multi-state litigation and serve as coordinating tools for states to work together. The book discusses a variety of recent examples of interstate compacts (some relatively controversial, others less so), but ultimately chooses to narrow in on the Compact for a Balanced Budget in the most detail. While I found this portion of the book to be interesting, I think perhaps including another in-depth example or two would have been helpful to provide the reader with a better sense of how these compacts are being used. However, the discussion of the Compact for a Balanced Budget is highly nuanced and essentially concludes that the compact requires minimal state resources, allows for easy coordination, and engenders little organized opposition due to it [*8] largely having a low degree of visibility. Interstate compacts also have several advantages over other state-based methods of organization, given that governors can veto the attempted removal of a state from a compact and are explicitly seen as a constitutionally valid method of organization in the U.S. Constitution. The discussion in Chapter 3 is quite compelling and lays out a strong conceptual map as to how states can systematically attempt to defy federal government policy if said states do not wish to go along with federal policy.

Chapter 4 focuses on issues related to voting rights and the history of such laws in the United States. The chapter provides an interesting discussion of the history of federal regulation of regulations, beginning with the Jefferson Administration and continuing through the National Voter Registration Act (NVRA), passed into law during the Clinton administration. Merriman continues by arguing that several policy and legal changes inadvertently created the conditions for state resistance of federal voting rights policy: most notably, HAVA and the Supreme Court decision, CRAWFORD V. MARION COUNTY ELECTION BOARD (2008), which upheld the constitutionality of a voter ID requirement in Indiana. Merriman shows that it has been difficult to challenge restrictions to voting passed by state legislatures for several reasons, including giving state officials less discretion how to enforce laws, and the localization and fragmentation of these laws, with federal courts generally giving states substantial leeway to create their own methods to verify who is able to legally vote, provided the laws are facially neutral (this comes from the fact that the Equal Protection Clause of the 14th Amendment and Article 1 give the role of guaranteeing equal districts to Congress).

THE BATTLE FOR THE COURT: INTEREST GROUPS, JUDICIAL ELECTIONS, AND PUBLIC POLICY

Vol. 30 No. 1 (January 2020) pp. 1-5

THE BATTLE FOR THE COURT: INTEREST GROUPS, JUDICIAL ELECTIONS, AND PUBLIC POLICY, by Lawrence Baum, David Klein, and Matthew J. Streb. Charlottesville, VA: University of Virginia Press, 2017. 184pp. Cloth $45.00. ISBN: 9780813940342.

Reviewed by Douglas Rice, Department of Political Science, University of Massachusetts Amherst. Email: drrice@umass.edu.

In one of the most expensive elections for a seat on a state court of last resort in the nation’s history, Sue Bell Cobb became the first woman to serve as Chief Justice of the Alabama Supreme Court. Reflecting on her discomfort with the campaigning and electioneering that brought her to office, the former chief remarked, “Donors want clarity, certainty even, that the judicial candidates they support view the world as they do and will rule accordingly. To them the idea of impartial and fair judges is an abstraction. They want to know that the investments they make by donating money to a candidate will yield favorable results” (Cobb 2015 p. 59). While a rich and growing literature connects public opinion with the behavior of judges across different forms of judicial selection, far fewer connect the dots between donor mobilization, campaign outcomes, and legal outcomes.

In THE BATTLE FOR THE COURT: INTEREST GROUPS, JUDICIAL ELECTIONS, AND PUBLIC POLICY, Lawrence Baum, David Klein, and Matthew Streb come together to provide a path-breaking chronicle of these connections, from court decisions to group mobilization to campaign outcomes. Focusing on personal injury law and policy at the Supreme Court of Ohio, the authors intricately detail the connections between the decisions of justices, the reactions of business, groups, and others to those decisions in subsequent judicial elections, and the implications of these reactions for the subsequent direction of the court on that policy. Traversing the terrain across each of these separate junctures provides a unique and particularly insightful perspective on the life of the law in states with elected judges. Though the authors take care not to stake a position in the grand debate over how best to select judges, the contribution of the study provides a powerful new entry in the literature and something that advocates of judicial elections must wrestle with. The authors find that as the Supreme Court of Ohio moved policy counter to powerful, pro-defendant interests, those interests mobilized to replace unfavorable judges with those who would be favorable. In general [*2] they were quite successful at ensuring that replacement, and in time the court came to reflect the policy preferences of those powerful interests. Perhaps most importantly for those wrestling with whether elections might ensure accountability, the authors find that voters are — to an extent that is almost remarkable, in this reviewer’s opinion — unaware of the underlying reasons for mobilization and the tort law stakes of the election. Taken together, the authors demonstrate convincingly that, in the context of the new-style judicial campaign, policy outcomes outside the view of a typical voter can precipitate wholesale changes in the membership of the court, and concrete changes in legal development.

This argument motivates the structure of the book, which is a quick read. A brief introductory chapter contextualizes the work within existing judicial elections research and justifies the choice of studying judicial politics through the lens of tort outcomes on the Supreme Court of Ohio. The three subsequent chapters serve as the analytical backbone of the book, with each addressing a different link in the chain of influence that Baum, Klein, and Streb seek to unravel. Though the book is short, the structure of the book combined with concise writing packs a serious punch. Each chapter makes a clear and analytical contribution to the overarching argument. The first demonstrates shifts in the court’s favor towards business interests as a function of changes in the court’s membership; the second connects changes in favorability towards business interests to mobilization of interest groups in the election; and the third and final analytical chapter then connects mobilization with voter behavior, and voter behavior to the composition of the court, bringing us full circle. The focus on tort policy for a single state court — in a genre often marked by comparing variation in more visibly controversial policies like the death penalty across varied forms of judicial selection in the states — may initially bring pause to some, but the appropriateness and brilliance of that choice becomes clear as the authors navigate this complex chain.

In Chapter 1, the authors provide a rich history of the Ohio’s tort policies, with particular attention to the policies coming forth from the Supreme Court between 1973 and 2012. The chapter offers a combination of both rich, in-depth, descriptive analysis of the course of tort law and policy over four decades in the state of Ohio and an impressive and novel quantitative analysis of justice votes. The analyses persuasively demonstrate five eras in the court’s doctrine, with each era corresponding to large increases (1973-1980, 1985-1992, 2003-2012) and decreases (1981-1984, 1993-2002) in the proportion of pro-defendant outcomes in tort cases. [*3] Importantly, these changes closely parallel changes in the court’s membership. In order to rule out changes as a function of threatening electoral environments rather than replacement, the authors conduct a series of analyses and comparisons of voting behavior, none of which provides evidence of consistent influence of electoral pressures. Therefore, taken as a whole, the chapter demonstrates a cyclical pattern of expansion and contraction in the openness of tort policy, with those cycles a function of changes in the actual composition of the court.

CREATING A CONSTITUTION: LAW, DEMOCRACY AND GROWTH IN ANCIENT ATHENS

Vol. 29 No. 11 (December 2019) pp. 136-141

CREATING A CONSTITUTION: LAW, DEMOCRACY AND GROWTH IN ANCIENT ATHENS, by Federica Carugati. Princeton & Oxford: Princeton University Press, 2019. 248pp. Cloth $39.95. ISBN: 978-0-691-19563-6.

Reviewed by Paul Gowder, College of Law, The University of Iowa. Email: paul-gowder@uiowa.edu.

In CREATING A CONSTITUTION: LAW, DEMOCRACY AND GROWTH IN ANCIENT ATHENS, Federica Carugati sets herself the dual tasks of contributing to an explanation of both Athens’s economic (and military) recovery in the Fourth Century B.C.E., and of showing the relevance of ancient examples for contemporary political science, in particular the dynamics of constitutionalism and its role in state success. The volume succeeds at both of those tasks, and will prove to be an essential read for those who are concerned to understand the distinct institutional forms that constitutionalism and the rule of law can take while still serving their stability-promoting function. This monograph is an elegantly executed and quite substantial contribution to the literature of political science, law, and classics.

Some historical context is perhaps necessary for the reader who is less familiar with Athens. In the middle of the Fifth Century, Athens was a prosperous and powerful empire, with much of its local hegemony built on naval power, which it used, among other purposes, to extract tribute from its “allies” (client states). As is well-known, Athens’s famous democracy was itself tied to this sea power, for the lower classes were the sailors. In this sense, Athens may stand as the first example of the thesis of a connection between military necessity and enfranchisement: a kind of ur-case for Therborn’s (1977, 21-23) “national mobilization democracy.”

However, toward the end of the Fifth Century, Athens went to war with Sparta, its major Greek competitor. Over the course of the war, the polis suffered several devastating defeats which brought its democracy down no less than twice. First, not long after a failed invasion of Syracuse (made infamous by Thucydides’s dissection of the folly of the democracy in bringing it about)—and, not incidentally, after a collapse of the legal system as well (Gowder 2016, 102-3)—the democracy was replaced in 411 B.C.E. by a short-lived oligarchy known as “the Four Hundred.” Athens bounced back from that meltdown fairly quickly, but finally suffered a total military defeat in 404 B.C.E. in which the Spartans occupied the city, tore down the Long Walls connecting Athens to its great port of Piraeus, and installed the infamously vicious and bloodthirsty Thirty Tyrants.

The Thirty were also quickly overthrown, but, in the interim, Athenian military power had been shattered, a vast proportion of the population had been killed (and much of the rest probably robbed by the Thirty), and a deep rift had been driven between the oligarchic and the democratic parties that posed the risk of poisoning Athens’s politics. Yet, as Carugati recounts, Athens recovered to an astonishing degree over the next century. It did not, to be sure, return to the heights that it scaled during the time of its empire, but it rebuilt the economy, regained the capacity to protect its interests militarily, and managed to preserve the restored power of the democracy for decades thereafter. How?

JUDICIAL MERIT SELECTION: INSTITUTIONAL DESIGN AND PERFORMANCE FOR STATE COURTS

Vol. 29 No. 11 (December 2019) pp. 134-135

JUDICIAL MERIT SELECTION: INSTITUTIONAL DESIGN AND PERFORMANCE FOR STATE COURTS, by Greg Goelzhauser. Philadelphia: Temple University Press, 2019. 201pp. Cloth $71.29. ISBN 978-1439918074. Paper $32.95. ISBN 978-1439918081.

Reviewed by Chris W. Bonneau, Department of Political Science, University of Pittsburgh. Email: cwbonneau@gmail.com.

In his latest book on the politics of judicial selection, Greg Goelzhauser asks a fundamental question: “Does merit selection work?” (p. 3). This method of judicial selection has been around since the 1940s, but the answer to Goelzhauser’s question has long eluded scholars for two reasons. One, and noted by Goelzhauser, is the lack of transparency and data surrounding this process (more on this later). Second, those proponents of merit selection who have dominated the legal community for a long time have not really been interested in systematically evaluating whether or not it works; it has simply been assumed to accomplish its goals of having better judges, more diverse courts, etc. Of course, there have been a number of studies that have shown this is not the case, as Goelzhauser rightly notes. These studies have all focused on outcomes: do you get “better” judges under merit selection? Do you get more diverse courts? In this new book, JUDICIAL MERIT SELECTION: INSTITUTIONAL DESIGN AND PERFORMANCE FOR STATE COURTS, Goelzhauser opens up the hood of the car and looks at the process of selecting judges and the impact process has on outcomes.

After laying out his research question and the current state of the literature in Chapter 1, Goelzhauser turns his attention in Chapter 2 to a case study of filling a vacancy in Arizona. Although I am a big believer in the use of quantitative methods, the use of this case study highlights the value of incorporating qualitative methods in research. Most judicial nominating commissions (who are tasked with providing a list of nominees to the governor) operate in secrecy, making it very difficult to understand who applied for vacancies, what their background is, what the deliberations entailed, and so on. Arizona, however, does things differently. With a few narrowly carved out exceptions that Goelzhauser details, all parts of the process are public and the public even has an opportunity to make statements in support of candidates. This allows Goelzhauser to watch the nominating process unfold as it happens. Moreover, the votes of the commissioners are also public. This case study is a fascinating look at how commissions work in one state. The study is limited to Arizona due to data availability, and while this is a limitation, in my judgment it is not a big one. That said, it is likely that the behavior of these commissioners is affected simply because they know that their comments and actions are going to be viewed by the public. Overall, though, the analysis in this chapter provides valuable information about how judicial nominating commissions work.

THE CONSERVATIVE REVOLUTION OF ANTONIN SCALIA

Vol. 29 No. 11 (December 2019) pp. 131-133

THE CONSERVATIVE REVOLUTION OF ANTONIN SCALIA, by David A. Schultz and Howard Schweber (eds). Lanham, Maryland: Lexington Books, 2018. 376pp. Cloth $120.00. ISBN: 1498564488.

Reviewed by Jeffrey R. Dudas, Department of Political Science, Executive Committee, American Studies Program, University of Connecticut. Email: jeffrey.dudas@uconn.edu.

The predicament of fairly and accurately reviewing an edited volume of scholarly essays is a familiar one; it is a challenge perhaps only eclipsed by the construction and oversight of such a volume in the first place. It is daunting for the reviewer, even in a venue as generous with space limitations as is the LAW AND POLITICS BOOK REVIEW, to know how to proceed. Should the review feature a summary and short analysis of each of the volume’s essays? Should it alternatively assess the overall themes of the volume – themes that may suffuse some of the essays while being mostly absent from others? Is the presence or absence of such themes legitimate grounds for criticism (or praise) of either the individual essays or the volume as a whole? The best answer, I suppose, is that reviewers of edited volumes should attempt to do at least some of all of these things. So here goes.

Professors David A. Schultz and Howard Schweber have commissioned and collected 13 essays authored by an accomplished group of scholars that together assess the many legacies – legal, political, and cultural – of deceased U.S. Supreme Court Justice Antonin “Nino” Scalia. In particular, the volume’s essays follow the lead of its title, accepting its premise (and frequently persuading the reader) that the late Justice’s collected work product can be usefully described as THE CONSERVATIVE REVOLUTION OF ANTONIN SCALIA. The contours and influences of that revolution are, however, ambiguous: Was Scalia’s promotion and use of the interpretive theory of “originalism” as important for the Court’s jurisprudence as his champions (and some critics) insist? Was Nino’s heightened, combative tone towards his opponents, both on and off the Court, a harbinger of the more “populist” elaboration of modern American conservatism that now seems to predominate? Is it possible, instead, that Scalia’s greatest impact – the “conservative revolution” for which he will be most remembered – points less to jurisprudential innovation and more to the sanctification of neo-conservative purpose with the imprimatur of “neutral” legal principle? The great strength of the 13 essays that Schultz and Schweber have cultivated is not that they offer definitive answers to any of these questions but rather that they ask those questions in the first place.

Consider Scalia’s originalism. At least five of the essays (those authored by Atwell, Smith and Jacobs, Merriam, Feldman, and Kahn and D’Emilio) make abundantly clear that this interpretive method – which insists that objective constitutional meaning can be derived from a historical investigation of then-contemporary common linguistic understanding – is the primary innovation upon which Scalia’s potential reputation as a “great jurist” rests. But as all of those essays also make clear, there were multiple issues with Nino’s originalist proclivities. For one, it turns out that his own use of originalism was highly selective. Scalia tended to employ the method with great fanfare whenever it could be plausibly marshalled to support his favored policy outcomes – outcomes that, as the excellent essays by Atwell, Merriam, and Feldman make clear, just so happened to endorse neo-conservative positions on race, gender, sexuality, executive authority, and Christianity. Conversely, and with very rare exceptions, when originalism appeared to endorse non-conservative positions, Scalia abandoned the method entirely, relying upon other jurisprudential moves such as plain meaning textualism and stare decisis. [*132]

And this is to say nothing of the flimsy historical investigations that Scalia and his clerks conducted when applying originalism. Indeed, I learned from several of these essays that Scalia not infrequently based the “original” meaning of constitutional provisions solely on then-contemporary dictionary definitions of the words in question – a reliance that would, I imagine, prompt either head-scratches or belly laughs (or maybe both) from actual, professional historians. Such selective, amateurish uses of history underscore the most acute and damning criticism of originalism: the inevitable ambivalences of history make ash of any attempts to find singular meaning or intention in the records of our past. Imagining that stable, neutral meaning can be found in history and then claiming that neutral ground as foundation for non-discretionary, allegedly non-political interpretations of law is at once folly and, in Scalia’s case, pretense (Kahn and D’Emilio call it a “façade”) for other (deeply-political) goals.