Which President Appointed Judicial Ideologues?
posted by Corey Yung
Moving away from the findings regarding individual judges in my two prior posts, I thought I would talk about some of my aggregate findings. In particular, one question that often arises in discussions of the federal judiciary is: which President(s) appointed the most ideological judges. Conventional wisdom has been that President Reagan appointed particularly conservative judges. Some also have argued that President George W. Bush appointed ideologues to the federal bench. Based upon my study, the judges appointed by President Reagan do appear to be especially ideological. However, the data did not support a similar finding as to those appointed by President George W. Bush. The figure below indicates the net Ideology Scores for the six most recent Presidents before President Obama for all of the judges in the dataset.
Outside of the judges appointed by President Reagan, there is remarkable symmetry among those appointed by the Presidents after President Nixon. There is one important caveat to the above findings, however. The older appointments represent a non-random sample of judges appointed by Presidents Ford, Carter, H.W. Bush, and Reagan. For those Presidents, there have been a large number of retirements. It might be that the judges who remain on the bench today do not adequately represent the entire class of appointees by those Presidents. Regardless, it is interesting to see that other than President Reagan’s appointments, the current Courts of Appeals appear to have been stacked to roughly the same ideological degree by the various Presidents.
June 23, 2010 at 9:15 am
Posted in: Empirical Analysis of Law, Legal Theory
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Responses (5)
Bryan Gividen - June 23, 2010 at 9:43 am
In addition to the heterogeneous sets of judges, couldn’t there also be a time effect on judges? That is to say, a new judge on the bench might be more prone to “compromise,” but as they stay on the bench, they become more entrenched in their personal ideology. For each President, if you were to measure ideology at the time of appointment, the number would be smaller and then increase over time. Obviously, this would be very difficult to separate from other time effects – because of the retirement issue you point out or the fact that you are measuring them against different judges to agree or disagree with – but it is a different story to tell with the data.
Scott Bauries - June 23, 2010 at 10:00 am
Corey,
I am really anjoying your informative posts. This one, in particular, got me thinking about the success rates of presidents appointing judges and justices. It seems to me that GW Bush may have gotten the (seemingly mistaken) reputation for appointing ideologues to the bench at least partially due to some high-profile nominees who were perceived as very ideological, but who were not ultimately confirmed. Judge Garza was the most prominent, I think (because Hariett Miers was never really considered “ideological” by most), but President Bush nominated about ten other people who were never confirmed to appellate judgeships and about 25 people who were never confirmed to district judgeships.
Two thoughts based on this:
(1) The data in your chart may not say as much about a president’s particular ideological leanings as they do about a president’s skill at getting Congress to accept more ideological nominees as “mainstream.” To find out, one would need to know whether the GW Bush “failure” rate is common or unique. It may be that Reagan and Bush have very similar aggregate ideology scores for their nominees, but that Reagan was just more skillful at obtaining congressional approval for his.
(2) Knowing the ideology scores (if they can be measured and known) of all nominees (both confirmed and not comfirmed) might also provide some insight as to how well “advice and consent” works in moderating the federal bench.
Again, great stuff. I’m looking forward to the next installment.
Glenn Sugameli - June 23, 2010 at 12:33 pm
Blocked GW Bush Judical Nominees Could Have Changed Results
Only (some of) the worst and most ideological of President George W Bush’s judicial nominees were not confirmed; if they had been, it could well have affected the results.
For some specific examples, see my Feb. 29, 2008 ACSBlog Guest Post “Guest Blogger Glenn Sugameli: Bush Judicial Nominees- Torture, Alice in Wonderland, Shoplifting, Ethics and more” and my Judging the Environment [.org] website, which compiles thousands of searchable & sortable links to GW Bush and Obama judicial Nominee and Issue Senator Statements, Editorials & Op-Eds, reports, letters and more.
[I have run the Judging the Environment project and website for the environmental community since 2001].
-Glenn Sugameli
Judging the Environment
Defenders of Wildlife
Doug Spencer - June 23, 2010 at 1:19 pm
Cory,
I’m curious if you found any effect for nominations confirmed by a friendly Senate or opposition one. Both Carter and Reagan faced friendly Senates and their scores are the highest. Were Reagan’s appointees less conservative during the 100th Congress (when Democrats took control of the Senate)? Likewise with Bush-43 during the 107th and 110th Congresses?
Corey Yung - June 24, 2010 at 2:42 am
Hi Bryan,
I was definitely curious about the possibility that length of time on the bench might affect a judge’s ideology. Unfortunately, because my data was only from one year, I couldn’t track the same judges over time (and there would be a lot of methodological difficulties with doing that). However, I did examine whether length of time on the appellate bench for the 138 judges I studied in detail was correlated with ideology. It was not.
Scott,
It is definitely harder to evaluate the entire pool of nominees by a President using the same objective measure as used to evaluate judges. However, I have come up with a partial solution so that I can at least discuss some of those questions. I’m in the midst of gathering 2009 data. My hope is that I will finally have sufficient samples for district judges (combining their district court decisions reviewed and votes while sitting by designation). So, for at least those judges that were on the district court and had their nominations to the appellate court fail, I will have some data. It probably won’t provide too much information, but I figured it would be a start.
Glenn,
That is probably true. I wonder, though, if Bush was unique in that regard. Every President has had nominees fail. It is difficult to evaluate which failed nominees were more ideological.
Doug,
I was definitely curious to see how the Senate could affect the ideology of nominees. So, I coded both for the political makeup of the Senate and whether the majority of the Senate was of the same party as the President at the time of confirmation. The number of GOP or Democratic Senators had no statistically significant relationship with ideology. For fun, I tried graphing it just to see if I could find any trend, but it was a straight line with virtually no slope.
For the unified Senate/President, I had to do things a bit differently. I coded the absolute value of the Ideology Score as “ideologicalness.” I ran regressions for unified government against “ideologicalness” and for mistakes (as defined by judges having the opposite direction of ideology as the President). There were no statistically significant relationships. I’ve had on my to-do list to go back over that data to see if I could find anything else worth examining. Because I only have 138 judges in the sample, it is difficult to see if, for example, there is some magic tipping point of Senators being aligned with the President that might be correlate with more ideological judges. Although I also coded for individual Congresses, I didn’t find any that had a statistically significant relationship with judicial ideology (but that might be a sample size issue).
Corey
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