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Category: Law Rev (Hastings)

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Have Presidents Gotten Better at Picking Ideologically-Compatible Justices?

Do Justices vote independently of all political forces surrounding their appointments? My earlier post discusses how, even in recent decades, Justices’ votes have been surprisingly independent of the ideologies of Senates to which they were nominated. Even so, it may be that presidents fared better than the Senate and recently enhanced their ability to appoint ideologically-compatible Justices.

History is rife with examples of Justices who disappointed their appointing presidents.   As recounted by Henry Abraham, Teddy Roosevelt complained vociferously about Justice Holmes’ ruling in Northern Securities, Truman called Justice Clark his “biggest mistake,” and Eisenhower also referred to Justices Warren and Brennan as “mistakes.”  My earlier study finds frequent grounds for presidential disappointment, based on voting records for eighty-nine Justices over a 172-year period. Just under half of these Justices voted with appointees of the other party most of the time. Still, of the last twelve Justices, only two, Stevens and Souter, aligned most often with appointees of the other party. This low number calls into question whether the frequency of presidential disappointments has diminished recently.

My recent paper identifies change over time using regression analysis and more nuanced measures of presidential ideology. The analysis shows ideologies of appointing presidents did not significantly predict Justices’ votes before the 1970s, but they gained significant predictive power thereafter. This enhanced success coincides with Presidents Nixon’s and Reagan’s efforts to prioritize ideology in appointments to the bench. While earlier presidents did not uniformly ignore nominees’ ideology, they lacked modern technological resources. By the Reagan administration, computerized databases allowed presidential aides to quickly assemble and analyze virtually all of a nominee’s past writings. The improved information may have enabled presidents to better anticipate nominees’ future rulings.

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The Senate’s Influence over Supreme Court Appointments

Thanks, Sarah, for the warm welcome. It is a pleasure to guest blog this month.

With pundits already speculating about President Obama’s next Supreme Court nominee, it seems a good time to discuss relationships between political forces surrounding Supreme Court appointments and Justices’ decisions. Justices sometimes disappoint their appointing presidents, and ideologically-distant Senates are often blamed for presidents’ “mistakes.” For example, David Souter and John Paul Stevens turned out to be far more liberal than the Republican presidents who appointed them (Bush I and Ford, respectively). These presidents both faced very liberal Senates when they selected Souter and Stevens.

Are nominees like Souter and Stevens anomalies or part of a larger pattern of senatorial constraint? My recent article in the Hastings Law Journal offers the first empirical analysis of the Senate’s role in constraining presidents’ choices of Supreme Court nominees over an extended period. It considers ideologies of Senates faced by nominating presidents and measures whether the ideologies of these Senates predict Justices’ voting behavior. The analysis substantially qualifies earlier understandings of senatorial constraint.

Earlier empirical studies consider only limited numbers of recent nominees (see article pp. 1235-39). They suggest that the Senate has constrained presidents’ choices, and many scholars theorize that the Senate has enhanced its role in the appointments process since the 1950s. Analysis of a larger group of nominees shows the Senate’s ideology has had significant predictive power over Justices’ votes in only two isolated historical periods. Senatorial ideology was last significant in the 1970s, shortly after the filibuster of Abe Fortas’s nomination to be Chief Justice, but then it actually lost significance after the Senate rejected Bork in 1987.

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Hastings Law Journal, Issue 64.2 (January 2013)

Hastings Law Journal, Issue 64.2 (January 2013)

Articles
Plausibility and Disparate Impact
Joseph A. Seiner

Safe Harbors and the National Information Infrastructure
Nicholas W. Bramble

The Rhetoric of Choice: Restoring Healthcare to the Abortion Right
Yvonne Lindgren

Mass Incarceration at Sentencing
Anne R. Traum

The Death of the Public Figure Doctrine: How the Internet and the Westboro Baptist Church Spawned a Killer
Douglas B. McKechnie

Notes

Familial DNA Testing, House Bill 3361, and the Need for Federal Oversight
Dane C. Barca

Chance of Rain: Rethinking Circumstantial Evidence Jury Instructions
Eugenee M. Heeter

Hastings Law Journal Voir Dire

The Hastings Law Journal’s online companion, Voir Dire, is now accepting submissions.

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Hastings Law Journal, Issue 63.6 (August 2012)

Hastings Law Journal, Issue 63.6 (August 2012) The Symposium Issue: Law & Policy of the Developing Brain: Neuroscience from Womb to Death

Articles
Bridging Developmental Neuroscience and the Law: Child-Caregiver Relationships
Ross A. Thompson

The Relevance of Immaturities in the Juvenile Brain to Culpability and Rehabilitation
Beatriz Luna

Developmental Neuroscience, Children’s Relationships with Primary Caregivers, and Child Protection Policy Reform
Lois A. Weithorn

The Neurobiology of Attachment to Nurturing and Abusive Caregivers
Regina M. Sullivan, Ph.D.

Creating a Clearinghouse to Evaluate Environmental Risks to Fetal Development
Kate E. Bloch

Fetal Risks of Environmental Chemicals: The Motherisk Approach to the Organic Mercury Fish Consumption Scare
Zahra Jahedmotlage, Kathie Schoeman, John Bend, & Gideon Koren

Poor Women and the Protective State
Khiara M. Bridges

Notes

The Government Can Read Your Mind: Can the Constitution Stop It?
Mara Boundy

Corporate Codes of Conduct: Binding Contract or Ideal Publicity?
Haley Revak

Hastings Law Journal Voir Dire

The Hastings Law Journal’s online companion, Voir Dire, is now accepting submissions.

Recent Essays:
The Long-Awaited Nationwide Mortgage Settlement:
Only a Small Step Forward in the Struggle for Accountability in the Financial Crisis

Julia Mas-Guindal

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Hastings Law Journal, Issue 63.5 (June 2012)

Hastings Law Journal, Issue 63.5 (June 2012) The Justice Ginsburg Issue

Articles
Principles and Persons: Ruth Bader Ginsburg, Raconteuse
Kenneth L. Karst

Justice Ginsburg and Religious Liberty
John D. Inazu

“The Experience and Good Thinking Foreign Sources May Convey”: Justice Ginsburg and the Use of Foreign Law
Jeremy Waldron

Jumpstarting the Stalled Gender Revolution: Justice Ginsburg and Reconstructive Feminism
Joan C. Williams

The Law of Gender Stereotyping and the Work-Family Conflicts of Men
Stephanie Bornstein

A Tale of Three Families: Historical Households, Earned Belonging, and Natural Connections
Allison Anna Tait

Notes

Repercussions of China’s High-Tech Rise: Protection and Enforcement of Intellectual Property Rights in China
Emily Gische

Escaping Forced Gang Recruitment: Establishing Eligibility for Asylum After Matter of S-E-G-
Alexandra Grayner

Hastings Law Journal Voir Dire

The Hastings Law Journal’s online companion, Voir Dire, is now accepting submissions.

Recent Essays:
Sustainable Capitalism: Revelations from the Japanese Model
Joel Slawotsky

Right-Sizing Bar Association Governance
Daniel R. Suhr

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Hastings Law Journal, Issue 63.4 (May 2012)

Hastings Law Journal, Issue 63.4 (May 2012)

Articles
A Profession, If You Can Keep It: How Information Technology and Fading Borders Are Reshaping the Law Marketplace and What We Should Do About It
Stephen Gillers

Issue Preclusion Effect of Class Certification Orders
Antonio GIdi

The Evolution of Unconstitutionality in Sex Offender Registration Laws
Catherine L. Carpenter and Amy E. Beverlin

Notes

A Culture Without Consequences? Redefining Purposeful Availment for Wrongful Online Conduct
Jenny L. Grantz

Reducing Civil Litigation Costs by Promoting Technological Innovation: Adopting Standards of Reasonableness in E-Discovery
Kelly Foss

Hastings Law Journal Voir Dire

The Hastings Law Journal’s online companion, Voir Dire, is now accepting submissions.

Recent Essays:
Sustainable Capitalism: Revelations from the Japanese Model
Joel Slawotsky

Right-Sizing Bar Association Governance
Daniel R. Suhr

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Hastings Law Journal, Issue 63.3 (March 2012)

Hastings Law Journal, Issue 63.3 (March 2012)

Articles
The Paranoid Style in Regulatory Reform
Jodi L. Short

A Moral/Contractual Approach to Labor Law Reform
Zev J. Eigen and David Sherwyn

Why Sit En Banc?
Stephen L. Wasby

Hip-Hop and Housing: Revisiting Culture, Urban Space, Power, and Law
Lisa T. Alexander

Notes

Risky Propositions: A New Standard for the Award of Attorney’s Fees Against Defendant-Intervenors in Ballot-Initiative Litigation
Matthew Slevin

Private Eyes Watching You: Google Street View and the Right to an Inviolate Personality
Roger C. Geissler

Exposing Misconduct: Fixing the California Supreme Court’s Limitation of Post-Conviction Discovery
Jasmine Berndt

Hastings Law Journal Voir Dire

The Hastings Law Journal’s online companion, Voir Dire, is now accepting submissions.

Recent Essays:
Right-Sizing Bar Association Governance
Daniel R. Suhr

Excluding Unemployed Workers from Opportunities: Why Disparate Impact Protections Still Matter
Helen Norton

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Hastings Law Journal, Issue 63.2 (Jan. 2012)

Hastings Law Journal, Issue 63.2 (January 2012)

Articles
Denying Secured Creditors the Right to Credit Bid in Chapter 11 Cases and the Risk of Undervaluation
Alan N. Resnick

Tax Deductions for Charitable Contributions: Domestic Activities, Foreign Activities, or None of the Above
Eric M. Zolt

Guilty by Proxy: Expanding the Boundaries of Responsibility in the Face of Corporate Crime
Amy J. Sepinwall

Advising Terrorism: Material Support, Safe Harbors, and Freedom of Speech
Peter Margulies

Protected by Association? The Supreme Court’s Incomplete Approach to
Defining the Scope of the Third-Party Retaliation Doctrine

Jessica K. Fink

Notes

Playing Hot Potato in the Market: The Ninth Circuit’s Better Approach to
Calculating Loss for Securities Fraud Sentencing

Erica Connolly

Why Can’t We Be “Friends”? A Call for a Less Stringent Policy for Judges Using Online Social Networking
Brian Hull

Hastings Law Journal Voir Dire

The Hastings Law Journal’s online companion, Voir Dire, is now accepting submissions.

Recent Essays:
Right-Sizing Bar Association Governance
Daniel R. Suhr

Excluding Unemployed Workers from Opportunities: Why Disparate Impact Protections Still Matter
Helen Norton

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Hastings Law Journal, Issue 63.1 (Dec. 2011)

Hastings Law Journal, Issue 63.1 (December 2011)

Articles
Institutionalization, Investment Adviser Regulation, and the Hedge Fund Problem
Anita K. Krug

Patent-Eligible Inventions After Bilski: History and Theory
Joshua D. Sarnoff

The Psychology of Procedural Justice in the Federal Courts
Rebecca Hollander-Blumoff

Crime Mapping and the Fourth Amendment: Redrawing “High-Crime Areas”
Andrew Guthrie Ferguson

Is There a Constitutional Right to Select the Genes of One’s Offspring?
Andrew B. Coan

Note

Fashioning a New Look in Intellectual Property: Sui Generis Protection for the Innovative Designer
Linna T. Loangkote

Hastings Law Journal Voir Dire

The Hastings Law Journal’s online companion, Voir Dire, is now accepting submissions.

Recent Essays:
Excluding Unemployed Workers from Job Opportunities: Why Disparate Impact Protections Still Matter
Helen Norton

The Supreme Court’s Open-Ended Protection Against Third-Party Retaliation
Jessica Fink

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Hastings Law Journal, Issue 62.6 (July, 2011)

 

Hastings Law Journal, Issue 62.6 (July, 2011)

Articles
Network Accountability for the Domestic Intelligence Apparatus
Danielle Keats Citron and Frank Pasquale

Severability of Statutes
Tom Campbell

Race Audits
R.A. Lenhardt

Jury 2.0
Caren Myers Morrison

The New Common Law: Courts, Culture, and the Localization of the Model Penal Code
Anders Walker

Forced Federalism: States as Laboratories of Immigration Reform
Keith Cunningham-Parmeter

Apportioning Liability Behind a Veil of Uncertainty
J. Shahar Dillbary

Notes

Someone is Watching: The Need for Enhanced Data Protection
Nic Roethlisberger

Bridging the Gap: An Application of Social Frameworks  Evidence to Shaken Baby Syndrome
Lauren Quint