In their confirmation hearings, Chief Justice Roberts and Justice Sotomayor both articulated a vision of the neutral judge who decides cases without resort to personal perspectives or opinions, in short, without ideology. At the other extreme, the dominant model of judicial decisionmaking in political science has long been the attitudinal model, which posits that the Justices‟ votes can be explained primarily as expressions of their personal policy preferences, with little or no role for law, legal reasoning, or legal doctrine.
Many traditional legal scholars have criticized such scholarship for its insistence on the primacy of ideology in judicial decisionmaking, even as empirical legal scholarship has grown in significance and influence in the legal academy. Recently, however, empirical scholars and traditional legal academics have begun to engage in serious discussions with each other about how to think about and evaluate the balance between law and ideology and about how to harness the powerful tools of quantitative analysis to study such questions. In this Article, I offer several contributions to this discussion.
First, the Article evaluates current efforts by empirical scholars to identify the ideological character of cases. These efforts generally assume that the ideological character of a case can be determined by reference to a single liberal-conservative spectrum, and they generally presume that all or most cases present only a single issue. Through a recoding and quantitative analysis of a random sample of recent Rehnquist Court cases, as well as through a qualitative analysis of many of the cases, I establish concretely some of the limitations of these efforts. Specifically, I demonstrate that these approaches are indeterminate and oversimplified, and often prevent scholars from identifying cases in which the Justices face issues that pull them in different ideological directions. At the same time, however, I identify their strengths, particularly the strengths of approaches that leverage information derived from the Justices‟ actual voting patterns.
Finally, I propose a new approach for empirical scholars interested in studying the role of ideology in Supreme Court cases. Rather than starting with the assumption that ideology is the most important factor in Supreme Court decisionmaking, my approach focuses on just how important ideology was to the Justices in a particular case. Measuring ideological salience, I argue, would allow empirical scholars to study the empirical question of when and how ideology – and other factors – affects decisionmaking. Doing so would also open the door to a wide variety of important and interesting research questions. Most importantly, this approach would allow empirical scholars to engage with more traditional legal academics in the important normative debates about when and how ideology should play a role in the work of the Supreme Court.
In their brief essay (forthcoming in Law and Human Behavior), John Monahan & Laurens Walker (both at UVa) assess the continuities and changes that have occurred in the application of
social science research to law during the past 25 years. It is an appropriate moment to reflect on changes and their velocity over time. An excerpted abstract follows:
the first edition [of the
casebook Social Science in Law (2010)] appeared, courts’ reliance on social science was often
confused and always contested. Now, courts’ reliance on social science
is so common as to be unremarkable. What has changed - sometimes
radically - are the substantive legal questions on which social science
has been brought to bear."
Over at The Faculty Lounge blog Al Brophy (UNC) has a thoughtful post on Dean Levi's review of How Judges Think, which has also appeared recently in theDuke Law Journal. Although Al's main emphasis is on the legal history aspects, he also understands the strong empirical overlay when he notes:
"[former federal judge and now Duke Law Dean] Levi's main point is that Posner is insufficiently empirical in
assessing how judges think. Some may think that an odd criticism given
how deeply empirical so much of Posner's work is; however, I suppose
this book seeks to provide a framework for subsequent investigation.
Certainly a lot of this can be empirically tested (though not
Thanks to the Empirical Legal Studies crew for letting me guest blog here. Consistent with the motto of the blog, I hope to use my time with ELS to bring some method to the madness that seems likely to swirl around Sonia Sotomayor’s confirmation hearings this summer.
For the past two years I have been compiling a dataset capturing all of the statements made by senators and Supreme Court nominees at the confirmation hearings held by the Senate Judiciary Committee.The dataset starts with the Felix Frankfurter’s hearing and ends with Justice Alito’s. I have coded by issue area all statements made by the nominees and senators. Each unit of analysis includes information about the political party of the questioning senator, the appointing president, and the committee chair. The dataset also captures instances where a court case was discussed by name, and includes variables indicating whether the statement being coded addressed constitutional interpretation, statutory interpretation, or federalism.
I hope to use this data to provide real-time commentary on the confirmation hearings this summer.Because Supreme Court vacancies occur so infrequently, our discussion of the confirmation process often lacks historical perspective. I hope this data can help rectify that, by bringing concrete information to conversations about what has – and has not – been “the norm” in this process.
I also hope that the ELS community will provide feedback about how to use and improve this dataset. This is in many ways a ‘test run’ of the data, so I look forward to hearing your comments about it. I’m also open to suggestions regarding what type of information you think would be interesting to pull out of the dataset.
As long as every other interested party is weighing in on Pres. Obama's first S.Ct. nomination, the least I can do is endorse Dave Hoffman's proposal for a nominee that, at a minimum, possesses a general familiarity and comfort with empirical methods. Although I can understand it when judges choose to simply ignore salient (and, I hope, well-crafted) empirical evidence brought before them (however much it might pain me), when judges (especially Justices) choose to engage with empirical work, however, they really should avoid botching things. In Exxon, Justice Souter's recent high-profile bungling (or "debacle" as Dave notes here; subsequent scholarly work on the issue is found here) falls below what I expect from my law students. Dave's conclusion warrants repetition:
"The point is that at least some exposure in statistics and social science techniques is quickly becoming part of a well-rounded legal education. It should also be part of what we look for in a Justice."
(Please excuse the slightly off-topic nature of this post, but this was too good not to pass along).
One of my hobbies (my spouse would say "afflictions") is collecting and using vintage fountain pens. In the pursuit of that afflic... er... hobby, I came across this discussion, the central point of which is that Justice Souter is also a fountain pen aficionado; specifically, he uses "an old Esterbrook from forty or fifty years ago."
Fountain pen nuts will immediately know what I mean when I say that I can't think of a more Souter-esque pen than an "Estie." They have a reputation as "blue collar" pens -- no Mont Blancs here -- but while they're not flashy, they are unfailingly reliable. (Full disclosure: My very first fountain pen was a red Esterbrook J, purchased while I was still in graduate school; it lives on my desk to this day).
Thanks Jeff for the comment to my first post and let me amplify in this second post. I agree that accurately measuring judicial ideology is crucial to so much of our research in judicial politics. To answer Jeff’s concerns, the scores are very highly correlated with the Giles et al. common space scores (pearson=.768), and the Giles’ scores do not predict lifetime liberalism of federal judges significantly better or worse than the Nixon/Howard scores (pearson correlation=-.278, p<.01). Having said that, however, there is a problem with the Giles et al measure in predicting judicial voting behavior. When there is no home state senator of the same party as the president, Giles et al. scores the nominee at the same ideology as the president. But because the point estimates for presidential common space scores are relatively extreme (see Clinton et al. 2004), this assumption has the effect of making these judges ideologically extreme. Indeed if both Indiana senators were Republican then Hamilton would have the same ideology score of Obama, which although not as liberal as conservative commentators make it out to be, it is considerably to the left of Bayh and our measure.
The assumption is a significant one, because senatorial courtesy was absent in about one of four of 395 appointments to the U.S. Circuit Courts of Appeals. Scott Graves and I had to confront this problem in our book on recess appointees and comparing pre and post recess appointment voting. A recess appointment by definition has no home state senator and the Giles et al. measures just did not make sense and that the voting behavior of judges does not support the extreme. Judges appointed by Republican presidents exhibit only a slightly more conservative voting record when their appointment was unconstrained by senatorial courtesy, and the difference is not statistically significant by a 1-tailed test. Judges appointed by Democratic presidents exhibit only a slightly more liberal voting record when their appointment was unconstrained by senatorial courtesy, and the difference is not statistically significant. In comparison, the Nixon/Howard ideology scores show that the pattern much more closely matches observed voting behavior of judges. The scores exhibit slight extremity in the president’s direction, when the president’s nomination is unconstrained by senatorial courtesy, and the difference is only marginally significant.
Of course one could argue that in the absence of a moderate Democratic senator like Bayh, Obama would have appointed a more liberal judge, but given the pool of available judges that does not seem likely and the above referenced data do not support such a conclusion
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.
Here in Illinois we have some well-known difficulties with our elected officials. Various reports about Rod Blagojevich since Tuesday have run through our list of not-so-distinguished former governors. One is Otto Kerner, Jr., governor from 1961 to 1968. Kerner
resigned in 1968 to join the United States Court of Appeals for the Seventh
In February 1973, while still a member of the Seventh
Circuit, Kerner and his campaign manager were convicted for "a variety of
offenses arising out of their activities on behalf of certain Illinois racing interests in return for
bribes of more than $ 150,000 each." United States v. Isaacs, 493 F.2d
1124, 1131 (7th Cir. 1974). See also United States v. Kerner, 895 F.2d
1159, 1160 (7th Cir. 1990). The charges were based on events occurring both before
and after Kerner joined the court.
Trying a Seventh Circuit judge in the Northern District of
Illinois raises some obvious concerns. Chief Justice Warren Burger therefore designated a judge from the Eastern District of Tennessee to preside over the trial in Chicago. Burger also designated senior judges from the Eighth, Second, and Tenth Circuits to
hear the appeal. Before a Seventh Circuit panel free of any actual Seventh Circuit judges, Kerner argued in
part that the district court lacked subject matter jurisdiction "to try a
federal judge upon an indictment before his removal from office by the
impeachment process." Isaacs, 493 F.2d at 1140. The panel disagreed, but
it did reverse Kerner's convictions on some of the counts.
Although he took a leave of absence from the court after his
indictment in December 1971 and lost his chambers and staff in April 1973, Kerner didn’t resign from the Seventh Circuit until July 1974, more than a
year after his conviction. For all practical purposes, the Seventh Circuit was short one judge for three years. Judge William Bauer finally replaced Kerner in December 1974. Kerner spent under eight months in prison and died
Note: In the photograph above, Judge Kerner is standing to the right of
John Paul Stevens. This photo is found on page 178 of Rayman Solomon’sHistory
of the Seventh Circuit 1891-1941 (1981), which at pages 179-180 discusses many of the
details above. Two other sources for the information above are Robert Sprecher, Review of The Politics of Federal Judicial Administration, 1974 Ariz. St. L.J. 723, 733 (1974) and Robert P. Murrian, To Do Justice Between Man and Man: Tribute to Judge Robert L. Taylor, 55 Tenn. L. Rev. xi, xiii (1988).