Empirical Legal Studies

Thoughts on "Bias and the Bar"

Rich, Amy, and Susan have done a great service by writing their study.  My comments here focus on a specific aspect of the paper: the issue of causality.  The paper itself makes a number of explicitly causal claims, referring (for example) to the "most influential causal factors" that might determine ratings, and to the construction of "a series of causal models" (p. 11).

My narrow point is that models of which they speak aren't really causal models at all; they are straightforward regression-type models, of the sort social scientists do a lot of.  That isn't a criticism of what they've done, but rather just an observation, albeit one that suggests a simple change in approach.

Manipulability theories of causation (perhaps most famously set out in Holland's (1986) paper) -- upon which most of the current approaches to causal inference are based -- certainly have their critics.  But they have a natural application to the central question of the paper: What ABA rating would nominee X have received had s/he been appointed by a Democratic president, rather than a Republican (or vice-versa)?

This (to me) suggests that the paper is an obvious candidate for a matching-based analysis of the influence of (e.g.) party on ABA ratings.  Such an approach is (a) very easy to do, as a practical matter, (b) allows one to control for other potentially confounding factors, and best of all (c) provides a direct answer to the question posed above that can be interpreted in causal terms.  These approaches are increasingly widely used in empirical legal studies, and seem (to me) to hold particular promise in addressing the authors' central question.

Discussing "Bias and the Bar"

Thanks for your post, Sara! You are obviously correct in that we cannot truly capture in our model the full parameters of the investigation the ABA conducts. Most importantly, we do not know what is learned in the background interviews, and the ABA does not share that information with anyone outside of the ABA committee, including the president and the Senate Judiciary Committee members. However, we would argue that our model does more than simply capture nominee qualifications per se since the crucial question is not how would others rate these nominees, but how did the ABA evaluate them? The issue is that what is considered "qualified" really does vary based on who you ask, and, as evidenced by external discussions of nominee ABA ratings, the ABA's ratings do not merely reflect the conventional wisdom as to whether a certain person is, objectively, qualified for the federal bench. We do examine information others can also find, but we chose these measures because these are the types of qualifications the ABA itself says it considers in its guidelines. Furthermore, even if others possess this same information, the reason the ABA is granted this role is its unique ability to evaluate how much these different background experiences matter. Senators thus rely upon the ABA to give them guidance about whether a particular nominee is, in fact, fit for the federal bench.

The other important issue is that Senators depend on the ABA because they lack the time, resources and staff to do their own investigations. Even if the senators have nothing more than the ABA rating, the belief that the rating reflects an in-depth evaluation heightens the importance of this rating. And, even if our model is merely capturing what factors are likely to lead to a determination that a nominee is qualified per se, since it is the ABA that sets the gold standard for this discussion, then even capturing that part of the process provides important insights.

As to whether the findings are time-bound, our reason for looking at nominees from 1985 onward was to deal with any potential time-based issues. Since 1985, and especially since the Bork nomination in 1987, criticisms directed at the ABA have been from conservatives. We therefore believe our findings explain the process as it exists today, and most likely, the process in the future, but agree that we cannot necessarily use them to explain the ABA's behavior in earlier periods. And, given important changes such as the increased politicization of lower court appointments, the increased politicization of the ABA House of Delegates, and changes in the evaluation standards themselves, we think it best to focus our attention on this more recent period.

Omitted variable bias is always of concern, and certainly our model cannot capture how the additional context provided by the ABA's committee's interviews influences the decision-making process. That said, our model does, we believe, reflect the influence of the major factors the ABA considers, and provides us with insights on how the ABA determines whether a nominee is considered "qualified' for the federal bench. If the factors we examine only point toward whether a nominee is qualified per se, that in fact suggests that we need to understand even more why we then find differences based on ideology and partisanship.

Forum: "Bias and the Bar"

I'd like to thank Rich and Amy, again, for agreeing to come on and discuss their work with all of us.  I'd like to start the discussion with the ABA's standing committee itself.  Why does it have the role it does, and how does it decide which rating to give to a given judicial nominee?

The authors agree that the ABA plays a vital role in the process, but I would argue that its vital role really isn't captured in this paper.  The models are couched as attempts to explain the ABA's ratings, but I think they are really attempts to ascertain what makes a judicial nominee qualified for the job per se, as it cannot be said that the models adequately capture the decision making of the ABA's committee.  Indeed, the measures in the models here are composed of information that is not exclusive to the ABA and would be easy for Senators or the President to obtain on their own:  judicial experience, clerkships, law professorships.  What the ABA brings that is valuable and that makes it relevant to Senators trying to make a decision on a given nominee is its extensive research on the nominee that includes interviews of colleagues and bosses and lawyers and judges who have personal knowledge of and information about the candidate.  It is quite likely that the information obtained through these interviews is highly related to the ABA’s rating, as is other information the ABA considers, including all published writings of the candidate; i.e., opinions and briefs and law review articles. 

Of course, the interviews are confidential and I do not know whether the reports the committee issues are available to anyone not serving on the committee, and so this sort of information would be extremely difficult to include in an analysis of the Committee ratings.  But I think it leaves the reader wondering how any model of this particular decision-making process could be fully specified and how much credence we can place on the findings reported here regarding the ABA's apparent preference for liberal potential jurists, given limitations on specification.  In addition, I wonder whether the results are time-bound, given that liberals used to claim that conservative jurists were favored.  What changed in the ABA's process between then and now?  I think the authors are onto something when they discuss the criteria the ABA says it uses in these evaluations, which includes judicial temperament.  (Indeed, reading the ABA's Senate Judiciary Committee testimony in the case of Michael Wallace (who received a Not Qualified rating from the ABA) raises all kinds of questions about how that criterion operates in practice. And, I would argue that one measure in the model -- service as a Congressional staffer -- may actually tap into that criterion (since open-mindedness is one component of judicial temperament).)  But, is that criterion new?  

I suppose that's enough for now.  Thoughts?

  

Discussing "Bias and the Bar"

Hello ELSblog readers! We are Richard Vining (Assistant professor, University of Georgia) and Amy Steigerwalt (Assistant professor, Georgia State University), and we have been asked to contribute here this week. We're also the authors of a recent study, "Bias and the Bar: Evaluating the ABA Ratings of Federal Judicial Nominees" (available at SSRN), that has gotten notice here and elsewhere. In that paper, we assess the influence of several variables on the ABA ratings of nominees to the U.S. Courts of Appeals from 1985-2008. The headline from the paper is that we find, all else being equal, the longstanding conservative complaint of ABA bias against conservative judicial nominees may have merit. Liberals/Democrats are in fact more likely, holding all else constant, to receive a Well Qualified rating than their conservative/Republican counterparts. Response to our study so far has included journalistic reports, scholarly interest, and enthusiasm. The op-ed page of the New York Times offered its take, while the Wall Street Journal op-ed page offered an alternative opinion.  Amy will also be interviewed by Fox News Channel on Monday (or possibly Tuesday, due to swine flu coverage), with excerpts to appear on Special Report with Brett Baier at 6PM EST.  Given the attention the paper has received, we welcomed the opportunity to discuss our methodology and findings with the readers of the ELSblog.

As many of you are probably aware, the American Bar Association’s Standing Committee on the Federal Judiciary has, since the 1940s, evaluated nominees to the federal courts as to their professional qualifications, integrity and judicial temperament. Traditionally, the ABA provided the president with evaluations of potential nominees, and these ratings were then forwarded to the Senate if the nominee was selected by the president. In 2001, President George W. Bush, removed the ABA from the presidential selection process, arguing that the ABA’s ratings were biased against more conservative nominees.

In "Bias and the Bar," we sought to address in a methodologically sophisticated way the frequently heard claim that the ABA is biased against conservatives. While seemingly a straightforward empirical question, the existing evidence was anything but. Many earlier studies contained numerous problems, such as only examining a small subset of nominees or studying only those who were ultimately confirmed. Some of these studies were also funded or supported by conservative organizations, which itself raised red flags. We conceived of this project in the summer of 2008, and believed that determining whether ABA ratings of judicial nominees are actually biased was important given the impending change in presidential administrations in January 2009. Whether John McCain or Barack Obama won the general election, the new president would be faced with a number of pending vacancies on the federal bench as well as the decision of whether to restore the ABA to its traditional role of evaluating nominees pre-presidential selection. It should be noted that when we began this study, we did not necessarily expect to find evidence of any type of bias. We were, however, curious to discover whether George W. Bush’s reasons for removing the ABA from the nominations process had merit.

To answer this question, we analyze the ratings of all nominations to the U.S. Courts of Appeals between 1985 and 2008; our sample consists of over 300 nominations. We present two competing theories, the political theory and professional theory, which reflect the rival views of the ABA's ratings process – i.e., ratings based on ideology vs. ratings based on professional qualifications and/or competence. We collected data on each nomination, including a number of professional history variables (e.g., years as a judge, years as a lawyer [and of what type], and whether the nominee had been a full-time law professor, Supreme Court clerk, or circuit court clerk) as well as indicators of political leanings (e.g., party of appointing president, Giles et al. [2001] ideology scores, and years as a congressional staffer) and demographic characteristics (gender and race). We chose to use an ordered logit model with an ordinal scale which ranges from Not Qualified to Well Qualified and takes into account split ratings by the ABA’s Standing Committee on the Federal Judiciary. We ran two separate models, one containing the party of appointing president and the other the nominees’ GHP scores. Since GHP scores are closely tied to the party identification of the president, the two measures are highly correlated. We ran both models, however, in order to ensure robust findings and to determine whether changes in ideology, rather than just mere partisanship, influenced the ABA’s ratings of nominees. Our models, therefore, “controlled” for all of these factors to determine their independent effects.

Most notably, we find that, all else being equal, Republican/conservative nominees are less likely to receive the ABA’s highest rating than Democratic/liberal nominees. These findings are robust, with very little difference between the results using the appointing party and those employing GHP scores. However, we also find significant support for the professional theory as well: all else being equal, nominees who have more experience as a judge are more likely to be rated highly, as are nominees who have more experience as a government attorney. Former circuit court clerks are more likely to receive higher ratings, while former congressional staffers, possibly due to the overtly partisan and political nature of such positions, are less likely to receive higher ratings. In sum, we find both that the ABA looks to professional experience when evaluating potential nominees to the federal circuit courts, and that conservative nominees receive lower ratings than liberal nominees.

We cannot explain exactly why Democratic/liberal nominees, all else being equal, are more likely to receive a Well Qualified rating. One possible conclusion is clear bias on the part of the ABA, though we believe this is unlikely. Alternatively, there may exist some unaccounted for factor which distinguishes Democratic nominees from Republican nominees. Finally, it is possible that the ABA’s evaluation procedure, while designed to be neutral, contains an inherent liberal bias as to what qualifications or types of experience are valued by the ABA. We believe the disparity may be due to the ABA’s rating criteria of “judicial temperament,” defined by the ABA as including open-mindedness, commitment to equal justice and freedom from bias. We agree that potential federal judges need to be open-minded, of the highest integrity, and unbiased in their approach to each case and litigant. However, if these words are more broadly interpreted to suggest, for instance, that nominees must hold certain views on public policy issues such as affirmative action or equal rights, then ideological biases may permeate the ABA’s evaluation process.

In the future we plan to continue this research by extending our analysis to the nominees to the federal district courts; one possibility is that partisanship and/or ideology may play a more prominent role in the vetting of circuit court nominees given the greater role of these judges in policy-making.

As is the custom here, we are happy to field questions regarding the study, its methodology and findings, and so forth. Thank you for your interest, and the ELSblog for the invitation.

Welcome Amy Steigerwalt and Rich Vining

I'd like to introduce Amy Steigerwalt and Rich Vining, who will be guest-blogging with us this week about their paper on the ABA ratings, which has been generating a lot of media attention of late.  (In fact, look for Steigerwalt's interview with Fox News Monday morning and coverage of the paper in Fox's Special Report Monday at 6pm EST.)  Their paper can be found here.  They'll start the conversation with an overall summary and discussion of the paper, and then Chris Zorn and I will engage them in some discussion of their research.  Of course, we also welcome comments from all of you "out there."  We thought this might provide a nice venue to discuss the choices we make when we conduct empricial social science, while also discussing a paper that might actually catch the attention of the general public and has immediate real-world consequences. 

Rich Vining is Assistant Professor of Political Science at the University of Georgia.  He received his PhD from Emory University in 2008, conducting most of his research on the issue of retirements from the bench.  Amy Steigerwalt received her PhD in 2004 from Berkeley and is currently Assistant Professor of Political Science at Georgia State.  Her research most often involves judicial selection and the role of interest groups.  (Their coauthor, Susan Navarro Smelcer, is a doctoral student at Emory.  Her dissertation considers the decision to dissent in collegial courts.)  Welcome, Amy and Rich!  We look forward to the discussion!   

More on Bankruptcy, Methods, and the Selection Effect

I previously posted on a series of bankruptcy papers that vigorously contest assessments of the recently reformed bankruptcy code. Over at Concurring Opinions Dave Hoffman (Temple) very helpfully weighs in on one of the more basic points in dispute--how to understand and account for selection effects. Dave's summary of the issue is well worth a read.

Data Visualization: It's on...

 For all of you interested in how we display data and other quantitative phenomena (which I hope is nearly everyone reading this), the ongoing throwdown over at FlowingData is worth taking a look at.  In that bloggy way, it's a response to a response to an (older) blog entry about the best data visualization projects of 2008.  But the exchange raises some interesting questions about how statisticians and others think about data visualization, and about the balance (tradeoff?) between graphics for presentation and for analytics.

Earth Day: Earthcast 2009

In honor of Earth Day, I just delivered the Keynote Address for Earthcast 2009, a 24 hour long online broadcast that includes people on four different continents celebrating Earth Day, which just began a 0:00 GMT.  It went well and was a lot of fun.  The archived video of my Earthcast Address can be found at http://earthbridges.net/earthcast09-hour1.

SSRN and Copyrights

While writing these blog entries and in dialogue with some commentators I realize that it is not just publishing venues that separate political scientists who specialize in public law and Empirical legal scholars and that is posting of manuscripts prior to and even after publication. While many political scientists post their research on their own websites and will post papers on conference proceeding websites before delivery the paper. I would venture to guess that most political scientists do not post manuscripts during the review process. Perhaps the “blind” peer review process inhibits academics from posting work under review, although we do attend conferences and present our research to panels before submission to a journal.

More than posting of work under review or under submission another issue that I now deal with as editor of the Justice System Journal is requests by law professors to post their accepted and published manuscripts on SSRN. Personally I do not care if someone does that. It disseminates the work and helps to publicize the Justice System Journal. Besides, most journal articles are available in some digital format. We are available on Westlaw and on Hein On Line, and the National Center for State Courts, the sponsor of our journal puts each article in a PDF file and posts in on line in the publications section of the research division of the National Center for State Courts.

However, publishers of the journals do care. For most academic journals publishers retain the copyright to the work. Before publication I am required to assign the copyright to the publisher. To reprint work in an edited volume or in a book that reproduces the words, tables or figures, I have to get written permission from the publisher.

Thus my dilemma with authors who want to post their work that is in the JSJ on SSRN. How do I satisfy the publisher’s copyright and the author’s desire for greater dissemination of his or her article?

New York Times on David Hamilton

Its nice once in a while (okay once) to be on top of the news.  The New York Times weighs in on the Hamilton nomination:

http://www.nytimes.com/2009/04/15/opinion/15wed3.html?_r=1&ref=opinion

The paper falls on the "sober jurist" side of the nomination. Given Lugar's support I doubt the nomination will be filibustered, but exciting times are ahead if we get a Supreme Court Nomination.

Journal Rankings

In response to Alex’s question on journal rankings, there is no website that I know of but there is published information.

 Acceptance rates for journals comes from:

 Martin, Fenton, and Robert Goehlert. 2001. Getting Published in Political Science Journals. Washington D.C.: American Political Science Association.

Two studies by Jim Garand and Mike Giles have become very influential in journal rankings:

 James C. Garand and Micheal W. Giles. 2003. “Journals in the Discipline: A Report on a New Survey of American Political Scientists. PS: Political Science and Politics 36(2): 293-308.”

 Micheal W. Giles and James Garand, “Ranking Political Science Journals: Reputational and Citational Approaches.”PS: Political Science and Politics 40 (October): 741-751

Empirical Studies for Non empirical audiences

The journal that I edit, The Justice System Journal, is a peer reviewed public law and judicial politics journal that publishes articles on courts and court administration, very broadly defined. The journal is available online through Westlaw and Hein on Line. Unlike The Journal of Empirical Legal Studies, we operate on an exclusive submission basis.  We serve two audiences. First we have an audience of court administrators and court professionals. These readers want information both practical and theoretical about the state of courts and court administration as well suggestions as to how to improve performance. Our second audience, and the one most of you would be interested in, is that of social scientists and those in the legal profession.  We seek quality social science work, and will accept different methodological approaches.

The practice of some previous editors was to insist that submissions to the Journal forgo most statistical and methodological language that would, in their opinion, be incomprehensible to much of the audience of court administrators. While I understand the concern, that begs the question of where one draws the appropriate line in talking to our various audiences. The prior editor did not allow any use of numbers, data or the use of statistical of methodological language and analyses. Thus, authors could not discuss actual data or methods and could not present coefficients, only asterisks to represent statistical probabilities of occurrence.  There was a thought that academic authors could save their detailed data driven work for a second version and publish that in other journals. This “secondary market” of publication rarely, and I think appropriately rarely, occurred. Once submitted to us, authors were understandably reluctant to submit essentially the same piece to another journal.

I am not criticizing past practices for this, but I am trying to find the right mix. I will include methodological analyses and full reporting of data and results. I do ask, however, for greater clarity and greater explanation of data and analysis with the understanding of our dual audience. I am now trying to decide about formal theory analysis. Can they be explained so that a diverse audience can appreciate that?

Venue (Publishing)

Since this is a blog of law professors and political scientists and connected to the Journal of Empirical Legal Studies, a journal that uses peer review but also allows multiple submissions, an issue I want to raise is publishing venue. The ability to speak to more than one audience is a tremendous benefit to political scientists who research and write in judicial politics and public law. It is very satisfying to see your work cited and discussed by those outside the discipline and this helps in establishing a national reputation, always a critical part of tenure and promotion decisions.

 

However, for those of us in the social sciences there are some pitfalls. You have to be careful to consider the weight of various publication outlets, make sure your department will give you credit for those publications, and consider whether potential employers want publications in journals outside of political science. One thing I have noticed in participating in job searches over the past several years is the increase in the number of law review articles published by candidates for judicial politics and public law positions.  However, since these are not peer reviewed, how much weight should a hiring committee give to these types of publications?  It is often difficult for hiring committees to evaluate law review articles.  To most of my colleagues it is difficult to assess the article and compare it to a work that has gone through peer review. 

 

Political scientists are familiar with the hierarchy of political science journals and can infer information and potential quality of the article from the journal in which a peer reviewed article is published.  Most departments usually have one or at most two faculty specializing in public law and judicial politics.  Because of this, most departmental search committee members have only a vague idea of the submission and publication process for law reviews, or how to assess their worth. Many of my non judicial departmental colleagues think of them as the equivalent of other non peer reviewed publications such as book reviews and book chapters. I think this can be unfair because many times law review articles have gone through an informal peer review process through presentation at symposia and because they are often available online prior to publication in the law review and thus accessible for comments and suggestions. Because of this attitude my recommendation is to concentrate on peer reviewed submissions when building a record for a first job out of graduate school or for a job in another political science department while untenured. After tenure I am not so sure, but I find myself still submitting to peer reviewed publications, and only thinking of law reviews for articles that have methodological problems, such as a small sample size.

How Liberal is David Hamilton (continued)

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

Guest Blogger: Robert M. Howard

I'd like to take this opportunity to introduce and welcome Bob Howard, who will be Guest Blogging with us this week.  Bob is currently Associate Professor of Political Science at Georgia State University and Editor-in-Chief of the Justice System Journal (published by the National Center for State Courts).   Bob holds a JD from Union College, a MA from Suffolk University Law School, and a PhD from SUNY Stony Brook.  His research often involves specialized courts and tax policy.  He's also written two papers with Jeff Segal expressly attempting to operationalize "law" and test for its influence (exploring the effect of originalism and judicial role perceptions, respectively, on Supreme Court decision making).  Hence, he is the perfect person to talk about issues in empirical legal research and its publication, and we are anxious to discuss the issues he raises.  Bob, welcome!

How Liberal is David Hamilton?

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.

Bankruptcy Scholarship 'Ping-Pong'

Last month I noted a paper (by Bob Lawless (IL), Angie Littwin (Texas), Katie Porter (Iowa), John Pottow (Michigan), Debb Thorne (Ohio U.), and Elizabeth Warren (Harvard)) that empirically assesses the recently reformed bankruptcy code. Given all the scholarly activity it ignited, an update is warranted.

The original Lawless et al. paper stimulated a critique from Rafael Pardo (Seattle). Lawless et al. respond to Pardo's critique (at: 83 Amer. Bankruptcy L.J. 47-61). Finally, to push the debate further, Pardo responds to the Lawless et al. response here.

The Technology Behind ELS Over Time

As previously promised (here), over at PrawfsBlawg you'll find John Pfaff's (Fordham) second post in his promised series on ELS. In it he overviews some of the major technological advancements that have fueled ELS. Well worth a read.

More Work on Judges and Pay

Owing to my co-ELS bloggers' modesty, it falls to me to highlight a recent paper by Henderson (IU-Bloomington), Zorn (Penn St.), and Czarnezki (Vermont). In the spirit and growing tradition that distinguish empirical work, their paper, Working Class Judges, builds on prior work (by Scott Baker) and leverages the dataset that Baker makes publicly available (an emerging norm that fuels empirical work).

In a prior paper, Baker concludes that "higher judicial salaries would have virtually no effect on the performance of federal appellate judges." After reanalyzing Baker's data, Henderson, Zorn, and Czarnezki "qualify Baker's interpretation of his results, at least with regard to judges located in the 'Top Five' legal markets of New York, Chicago, Los Angeles, San Francisco, and Washington, D.C.

In his original analysis, Baker relies upon the average law firm partnership compensation, adjusted for years in practice and region, to estimate the forgone income - and hence opportunity costs - of each federal judge. Baker explicitly anticipated the possibility that this variable would understate the opportunity cost in large legal markets; thus, he included a Top Five variable plus an interaction term, which captures the effect of forgone earnings when a judge is located in one of the nation's five largest legal markets. Baker's discussion, however, does not formally address the significance of the interaction term, which requires some additional steps to properly interpret.

Based on our reanalysis of Baker's specifications, it appears that judges in the largest legal markets often behave differently than their smaller market counterparts. Specifically, the lower judicial salaries in Top Five markets strongly correlate with behavior Baker characterizes as "ideological" or "influence-motivated." Conversely, while lower judicial salaries in small markets correlate with longer delays in issuing opinions, the exact opposite effect describes the behavior of judges in Top Five metropolitan areas."

More Musings on Future Challenges for ELS

Over at Prawfsblog John Pfaff (Fordham) begins a series of posts on challenges confronting (or will soon confront) empirical legal scholars. John touches on a number of important issues that he promises to get back to in greater detail in subsequent posts. Well worth reading, and I look forward to more.