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Author: Corey Yung

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Judicial Conservatism, Liberalism, Activism, Restraint, and Everything in Between

While this is my last planned post on the subject, I continue to welcome comments and suggestions about my attempt to measure judicial ideology. My goal in both my posts here and overall project has been to push forward the effort to better understand the process of judging and the outcomes of judicial decision-making. Judge Richard Posner’s detailed and extremely valuable account of judging in How Judges Think offers one of the most interesting looks into judicial decision-making. However, there has been limited empirical research into the various models of judging like those described by Judge Posner as applied in the real world. Frank Cross has been one of the few that has rigorously tested whether the major models of judging describe judicial behavior for judges at the federal appellate level. There is still an immense amount of work to be done in this area.

Thus far, I have created measures of judicial activism and ideology. I’m currently working on projects to assess the traits of judicial partisanship and independence. My goal is not to just create a typology of judges based upon those measures, but to really have an objective grasp of the differing ways judges in our federal system are reviewing cases. Since I have results based upon my first two measures, I thought it would be worthwhile to consider the Activism and Ideology Scores of a handful of judges.

Judge Circuit Activism Score (Mean = 56.0) Ideology Score (Midpoint = 0)
Deborah L. Cook 6 74.0 77.2
Diarmuid F. O’Scannlain 9 57.1 59.7
Frank H. Easterbrook 7 33.6 55.8
Edith H. Jones 5 68.6 22.0
Richard A. Posner 7 68.3 -9.9
Jerome A. Holmes 10 89.6 -9.7
Ann C. Williams 7 64.1 -31.5
Diane P. Wood 7 44.7 -37.2
Sonia Sotomayor 2 51.8 -40.1
Gilbert S. Merritt, Jr. 6 25.2 -52.4
Kim M. Wardlaw 9 92.7 -63.3

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Which President Appointed Judicial Ideologues?

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.

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Government Experience and Judicial Liberalism

In my last post, I explored the result that there is a correlation between judicial liberalism and a higher ranking of the law school attended by a judge. My Judge Database also included a variety of other biographic and demographic information about the judges. Most of those background factors had no statistical relationship with the Ideology Scores. However, one that did show a connection was prior government experience (excluding judicial experience) before nomination. Based upon my research, if a judge had executive or legislative experience at the state or federal level prior to appointment, he or she was much more likely to be politically liberal. Again, as with law school ranking, the effect was true for both Republican and Democratic appointees.This result may not seem particularly surprising if liberalism is associated with a pro-government view and conservatives are relatively anti-government. Interestingly, however, experience in the private sector did not show a statistically significant correlation with judicial ideology. Based upon the findings described in this post and the previous one, Republican Presidents might want to be cautious when appointing judges from highly-ranked schools and who have prior government experience. Similarly, Democratic Presidents might want to take a second look at potential nominees from lower-ranked schools with only private sector experience. Of course, none of this proves a causative relationship, but the differences in the populations of judges are striking.

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Law School Rankings and Judicial Liberalism

A common attack on elite law schools is that they are filled with with a bunch of loony liberals who hope to indoctrinate their law students with their left-wing beliefs. To my surprise, for federal appellate judges, there seems to be a kernel of truth to that belief.  The Ideology Scores of the 138 judges with sufficient sample size that I studied had a statistically significant relationship with the ranking of the law school attended according to the US News and World Report Rankings from 2010. While the flaws in the USNWR rankings are well-documented, they are simply the only ranking available for all of the law schools in my sample. The figure below indicates that for each ten ranks lower in USNWR, a judge’s Ideology Score increased in a conservative direction by 27.9 points (on a scale of -100 to 100). Read More

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Judging the Measures of Judges

In my last post, I discussed the measure I have proposed in my article for the judicial ideologies of federal appellate and district judges. That leads to the question: how do we know if my measure is “good?” Anyone can make up a bunch of numbers and formulas and declare their measure to be better than existing ones. How can it be said with any certainty that one measure of ideology is quantitatively or qualitatively better than another? That is one of the trickier questions in empirical legal studies of federal courts.

Consider the very interesting and valuable studyby Michael Heise and Gregory Sisk of judicial ideology in religious liberty cases published in the Northwestern University Law Review a few years ago. The study found, consistent with prior research, that ideology had a modest correlation with outcomes in religious liberty cases. How was ideology measured? Using Common Space Scores. What if the Common Space Scores were actually a poor measure of judicial ideology and votes in religious liberty cases were actually a “better” indicator of a judge’s ideology?  How would we know? Heise and Sisk chose to use Common Space Scores even while noting in detail the potential problems with the Scores. Of course, Heise and Sisk did so in part because they framed their study as part of a response to the firestorm created by an article by Lee Epstein and Gary King attacking empirical legal studies by legal academics. The types of inferences that can be drawn from the Heise and Sisk study would change dramatically if Common Space Scores were not strong indicators of judicial ideology. Read More

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Judged by the Company You Keep

Last week, I tried to outline the difficulties associated with measuring judicial ideology in regards to the limited alternatives that have been offered by scholars. In this post, I hope to describe how I have measured it and attempted to overcome the various obstacles brought about by my methodology.

My idea for identifying the ideologies of federal appellate judges was to determine the rates at which such judges agree and disagree with “conservatives” and “liberals” on the bench. The assumption was that like-minded judges will vote together more often and judges with dissimilar ideologies will tend to disagree. By focusing on the agreements and disagreements among the judges, the goal was to pinpoint their respective ideologies (via “ideal points”). This is an agnostic method that necessarily faces all of the shortcomings of such an approach that I previously described.

The initial concern with such a method is that there are far too few disagreements among the judges on the Courts of Appeals. Indeed, in the 10,242 cases in my dataset, there were only 288 dissents (including partial dissents). Some judges who participated in over 100 cases were not on a panel in which there was a single dissenting vote. Looking at the Courts of Appeals alone was, thus, unlikely to offer much information. My solution was to treat the district judges being reviewed as pseudo-fourth members of the appellate panel. After all, the district judge reviewed the same legal issue as the appellate panel and rendered judgment on that very same issue. Notably, there are far more disagreements with district judges in the form of reversals. Also, by including the district judges, my methods also allowed data to be harvested from unanimous affirmances as well (as described below). Read More

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How Can Judicial Ideology be Measured?

In my last post, I talked about the shortcomings with the leading measures of judicial ideologies. There are strong reasons, however, why those measures have dominated empirical legal research. If a scholar wants to assess the ideology of a judge, he or she is likely to try a technique that fits within one of these three categories: Case Outcome Coding, External Proxies, and Agnostic Coding. Each of these types of measures has advantages and disadvantages for federal judges not serving on the Supreme Court.

Case Outcome Coding – this category relies on a researcher going through a sample of cases and coding whether the judge’s or panel’s vote were “liberal” and “conservative” in ideological direction. While this technique can work reasonably well at the Supreme Court level (although there are shortcoming there as well), it is extremely difficult to apply to the Courts of Appeals or federal district courts. There is an enormous amount of labor required for sufficient samples to be accumulated for individual judges. Further, coding decisions are much more subjective than at the Supreme Court level as most of the federal docket is filled with cases that have little political salience. As Tonja Jacobi and Matthew Sag recently observed, “the last four decades of empirical scholarship have proceeded without a sophisticated objective measure of case outcomes.” Given the low level of disagreement among judges on the Courts of Appeals (due to consensus norms, “easy” cases, or other strategic incentives), there is an additional problem of making valid assessments without an enormous sample of data for each judge.  It is also possible that a researcher could try to code the ideological direction of methods instead of outcomes, but such a technique would tend to accentuate the difficulties described above. As a result, such measures have never been attempted on a comprehensive basis for individual judges on the federal appellate or district courts. Read More

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“What is Judicial Ideology, and How Should We Measure it?”

That was the title of an excellent symposium piece by Josh Fischman and David Law last year that highlighted the limited scholarly work that has been done to effectively define and measure judicial ideology, particularly for judges not serving on the Supreme Court. Academics who are not engaged in empirical work relevant to the courts are often to surprised to find out just how crudely ideology is measured by law scholars and political scientists. There really are only two existing measures of the judges serving on the federal courts other than the Supreme Court: political party of the appointing President and Judicial Common Space Score. Every major study in empirical legal studies for decades examing members of the judiciary has relied upon one of those two metrics to determine the ideologies of federal judges (with most studies using the party of the appointing President).

Using the President’s party reduces ideology to a simple binary score – either a judge is “liberal” or “conservative.” Notably, using the President’s party, recent and current Justices Clarence Thomas, John Paul Stevens, Sandra Day O’Connor, Antonin Scalia, Samuel Alito, Harry Blackmun, and David Souter are ideological equals. In a nomination battles, the measure is essentially useless since whoever the President nominates is given the exact same score. Read More

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“[Insert Judicial Nominee Here] is Out of the Political Mainstream”

I wanted to start by thanking the Concurring Opinions gang for having me as a guest this month.

The common attack of partisans in the recent judicial confirmation battles has been to brand the nominee as “out of the political mainstream.” Such accusations have been made against Justice Roberts, Justice Alito, Justice Sotomayor, and General Elena Kagan. However, the argument has also been deployed against lower court nominees as well. My favorite use of the device has been in the opposition to Ninth Circuit nominee Professor Goodwin Liu. In what typifies our modern political theater, Liu has been labeled as “out of the mainstream” in large part because he had the audacity to assert that Justice Alito was out of that very same “mainstream.” Of course, no one ever explains exactly what the “mainstream” is or what it takes to be “outside” of it. Read More

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Mirror, Mirror on the Wall, Who is the Most Activist of Them All?

In my last post, I gave some results based upon collective groupings of appellate judges. In this post, I want to focus on the performance of individual judges. The primary reason that I am working to create a relatively large dataset is to allow for individual judge assessments. That has not been possible with the existing appellate court databases.

So, while I cannot yet tell you who the most activist judge was in 2008 because I have only reviewed data from five circuits, I can share my preliminary results for a few higher profile judges, including the most recent nominee to the United States Supreme Court. Here are the activism scores based upon my preliminary data for some of the highest profile judges in the Second, Third, Fourth, Seventh, and Eighth Circuits ranked from most activist to least activist:

notables2

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