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