I am a social scientist. Therefore, whenever anyone says the word "normative," I squirm. I'll admit it. But I have been thinking, lately, about some of the normative implications of widespread knowledge of the attitudinal model of judicial decision making. The Law and Courts Listserv has been exchanging instances of hostility toward judges: Justice Ginsburg's internet death threats for reliance on foreign sources of law; the movement to seize Justice Souter's property in New Hampshire; the new "J.A.I.L 4 Judges" Amendment in South Dakota. Add to that list Pat Robertson's comments on This Week that activist judges are as bad as the 9/11 terrorists; the Senate Majority Leader's statements over the Shiavo case regarding Congress' power over the federal courts; Sensennbrenner's letter to the 7th Circuit on a sentencing decision; and on and on. (The Brennan Center, of course, does an excellent job of tracking these threats.) What is going on in terms of our confidence in our judiciary and over the presumed benefits of judicial independence?
I think, just maybe, widespread appreciation of the fact that judges, like other politicians, are influenced by their policy preferences may be at least in part responsible for the erosion of confidence in the courts. Is that possible? As confirmation hearings become more partisan and politicians point to and decry ideological decision making by judges, and we, for our part, continue to lack appreciation of the role of the law in our research, the problem is exacerbated. My first post discussed this question of how best to operationalize the law. Maybe what's going on today makes the call for understanding even louder.
Allow me to offer one new piece of evidence that judges are not out there making exclusively ideologically-driven decisions, at least on the Court of Appeals. A paper on which we're putting the finishing touches examines the variance in decision making on the Court of Appeals. (Perhaps this fits into the category raised earlier on this blog about what we are learning through us of empricial methods.) Susan Haire, Erin Kaheny and I argue that it's not just the vote choice that is interesting about judicial (or other political actors') decision making, but also the consistency in that choice. In other words, if critics are right, decisions should be driven by ideology AND they should be easily predicted on the basis of ideology. What we find, though, is that there are systematic components in the error variance; that is, that the error term around the prediction of a liberal vote is not random but has systematic components including the complexity of the case, the size of the circuit, the dissent rate in the circuit, and the career status of the judge, among other things. (Paul Collins has a work in progress that examines the same question with respect to the Supreme Court with some similar results.) What this means in the bigger picture, we think, is that concerns about purely political judging, at least at the Court of Appeals, is largely overstated. (Not that we didn't already suspect/know this.) Legal, case, and judge-specific characteristics influence the vote at the Court of Appeals level, as we know from much research on point. But, legal, case, and judge characteristics ALSO matter in terms of the consistency of that ideological vote. This should serve to give solace to those critics of the courts who think they are merely politicians in robes. Would more evidence of this sort stop the attacks on the judiciary??