I would like to thank the editors for this opportunity to blog on the ELS site. Among other titles and roles, I am the editor of the Justice System Journal and I will blog more about that in another entry, but for now I would like to blog about the recent nomination of David Hamilton to the U.S. Court of Appeals. I was asked to blog about this for Rowman & Littlefield, soon to publish a book on judicial recess appointments by Scott Graves and yours truly, and I thought my views on the nomination would be of interest to ELS readers.
Hamilton was widely viewed as a moderate and strongly endorsed by his home state senators, both Democrat Evan Bayh and Republican Richard Lugar, although several conservative websites decried his nomination and viewed Hamilton as an ideologically extreme liberal judge. Hamilton had his first hearing in front of the judiciary committee on April 1.
Of course the question that I want to address here is how moderate or liberal is David Hamilton? Is he an extreme ideologue as his detractors contend or the moderate and sober jurist as portrayed by his defenders? How do we know? There is no generally accepted measure of lower court ideology. A judge’s own partisan affiliation and the ideology of a judge’s appointing president have often been employed as useful surrogates of judicial attitudes. Scholars have sometimes ignored the ideology of the judge, and inferred his or her ideology from that of the appointing president. For example, Tate and Handberg (1991) proposed a measure of the ideology of the appointing president: -1 for ideologically conservative and presidents, 0 for nonideological presidents, and 1 for ideologically liberal presidents.
A recent and now widely used ideology measure was devised by Giles, Hettinger and Pepper (2001). This uses the Poole Nominate scores of the home state senators or of the nominating president if there is no home state senator of the same party as the president. The use of nominate scores allows direct comparisons with other political actors such as Senators, Representatives and Presidents, but leaves a very narrow ideology range for nominees, and all the nominees of a President who do not have a home state senator of the president’s party will have the same score.
To remedy these problems, a former colleague of mine, Dave Nixon, developed a more direct measure for each judge. We first used this in a paper published in the Washington University Journal of Law and Policy (2003), and Scott Graves and I use it in our forthcoming book and I use it some other publications and it will be in another forthcoming book of mine of Courts and Tax policy. The calculation begins by using the nominate scores of congressional representatives who later served as federal judges as a formula for determining a nominate score comparable to Nominate scores for other federal officials. The formula then uses various circumstances surrounding the appointment such as unified government, wartime, party of the judge and party of the president, among other factors. Unlike the Giles, et. al. scores the Nixon/Howard scores allow for differences for judges even if appointed from the same state by the same president. The scores range from about -5, most liberal to + 5, most conservative.
Given all that, what is Hamilton’s ideology? The Giles, et al scores place him at the exact same score of Evan Bayh, his home state senator, which is -.223, liberal to be sure, but moderately liberal, in fact just about smack dab in the middle range of potential Democratic appointee scores. The Nixon/Howard measure, on the other hand gives Hamilton a score of -.151, again liberal, but considerably closer to moderate than the Giles score. By either measure Hamilton is far from extreme. By our measure he is about as moderate a Democratic appointee as Republicans and Conservatives can legitimately hope for from a Democratic administration. Given the vehemence of the opposition, it does not bode well for any sense of post partisanship in forthcoming judicial nominations.