The last several decades have witnessed increasing politicization of the selection and confirmation process for judges of the lower federal courts. Nancy Scherer argues that this phenomenon results from politicians engaging in “elite mobilization strategies” designed to placate, and motivate, elite party activists. Republican presidents tend to make ideologically driven appointments. Democratic presidents embrace affirmative action in selecting judicial nominees, both to signal powerful groups and also—insofar as Scherer's empirical analysis confirms that female and minority Democratic judicial appointees tend to be more liberal than other Democratic appointees—on ideological grounds. Senators on both sides of the aisle employ obstructionist tactics, and both parties have made judicial selection and confirmation a campaign issue.

In explaining the rise of mobilization strategies, Scherer relies upon two assumptions: Politicians act in self-interest to attain reelection, and politicians perceive that they attain reelection most likely when their party base gets out and votes. According to the author, what has changed over the course of the last several decades is the path to achieving the second goal. The old party system's political patrons were instrumental in “getting out the vote.” Politicians often repaid this service with judgeships: “[L]ocal party activists under the old party system viewed lower court judgeships as jobs to be distributed to friends and campaign contributors” (p. 18). Even if Scherer somewhat overstates matters by thus suggesting that lower federal court appointments were generally made without regard to qualifications, the underlying point remains.

Under the new party system, it is party activists who “get out the vote.” Because modern activists care greatly about policy, the price they exact from politicians is different from that exacted by the old patrons. The greater leeway afforded by the Supreme Court to lower federal courts to vindicate individual constitutional rights makes federal courts a more attractive vista in which to pursue policy change, and in turn increases the importance to elite activists of lower federal court judges.

Scherer's undertaking differs from that of Sheldon Goldman in his comprehensive study of the lower federal court appointment process (Picking Federal Judges: Lower Court Selection from Roosevelt through Reagan, 1997). While Goldman focuses on the executive branch and seeks to place lower federal judge selection in historical context, Scherer offers a novel thesis to explain the evolution in the nomination and confirmation processes for lower federal judges. She places greater emphasis on the incentives for and action of the Senate, and also uses substantial empirical evidence of lower federal court voting patterns to show the success of the mobilization strategies.

The book's first part—its initial two chapters—locates judicial selection in historical context. First, Scherer presents a broad overview of the phenomenon and of her thesis. She then proceeds to demonstrate how, as the American political party system transformed from one based largely on patronage to one based largely on elite activism, the party affiliation of the president who appointed lower federal court judges played a larger and larger role in predicting the vote of judges in cases that raised controversial issues of the day.

The second part—the final seven chapters—presents elements of Scherer's argument in rewarding detail. Chapters 3 and 4 explain how mobilization strategies have overtaken presidential selection of judicial nominees. Chapter 5 details how interest groups on both sides responded by focusing on the Senate confirmation hearings. Chapter 6 explains how, in response, senators increasingly employed devices designed to delay or obstruct confirmation hearings and votes; it also provides a useful catalog of these devices and their use. Chapter 7 discusses and catalogs the use of lower court judicial selection on the campaign trail. Chapter 8 analyzes and rejects divided government as an alternative justification for the growing politicization of lower court judicial selection. Chapter 9 briefly concludes.

Scherer bolsters her claim about the party system's evolution and its effect upon lower federal court judges by empirically measuring differences in votes on controversial issues of the day by judges appointed by presidents of different parties. Her analysis finds little disparity in voting under the old party system, a growing difference during the transition years, and a sizable disparity under the new party system. The only quibble is that the old party system period—1940 to 1947—predates (perhaps necessarily) the increase in policy-oriented litigation in the federal courts (e.g., on p. 14: “There is little doubt … that interest groups intensified their litigation strategy in the 1950s”). Even if Fair Labor Standards Act enforcement was “largely left to the lower federal courts” (p. 31), policy-oriented litigation that might have generated disagreement was not, on Scherer's own account, then common. Thus, the data are consistent with the absence of disagreement among judges resulting from absence of litigation likely to have generated such differences. Still, the data strongly support her thesis.

One issue with Scherer's methodology concerns the situation in which one president appoints a judge to the federal district court, and another president elevates the judge to the court of appeals. The choice of whether to count the judge as appointed by one president or the other will affect the final data, with the greatest impact where the presidents are of opposing parties. The latter situation, while not common, is also not unheard of: As the author acknowledges, “[H]ome state senators or other prominent local party leaders still play a role in the selection of district court judges” (p. 19).

Scherer's treatment of such situations is ambiguous, although she appears to count the judge as appointed by the president who made the initial trial court appointment (e.g., on p. 201, explaining methodology as looking to the president who appointed the judge “to the federal bench”). (And, since in her study she includes votes cast by district judges “sitting by designation” on appellate panels, she necessarily counts for that purpose the trial-level appointing president.) Others have been similarly ambiguous (see Richard L. Revesz, “Environmental Regulation, Ideology, and the D.C. Circuit,” Virginia Law Review 83 [1997]: 1717–72, referring to “Republican and Democratic judges”; Cass R. Sunstein, David Schkade, and Lisa Michelle Ellman, “Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation,” Virginia Law Review 90 [2004]: 301–54, referring to “Republican and Democratic appointees”). At a minimum, commentators should be clear on the point. Further, given Scherer's distinction between the appointment of district and circuit court judges, counting the appellate-level appointing president makes more sense (see Sunstein, Schkade, and Ellman's underlying data at www.law.uchicago.edu/academics/judges/data.html, which seems to adopt this approach).

These minor points notwithstanding, Scoring Points is an important contribution to the literature on the selection of lower federal court judges, and more generally on the American political system.