“[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.
Even though it would likely make little difference in the political arena, one might think this is an area where empirical legal studies might be able to offer substantial assistance to the debate. After all, with the explosion of such research by legal academics in recent years, one might think that we would have a firm grasp on what is the mainstream of judicial ideology and where a nominee fits within that schema. At the very least, one might think that for judges being nominated to a higher position in the judiciary, scholars might be able to effectively pinpoint a judge’s ideology based upon past behavior on the bench. However, there simply is no such ability based upon existing empirical research.
Justice Sotomayor’s nomination battle is highly illustrative on this point. Despite the nearly seventeen years on the bench at the time of her nomination, Justice Sotomayor’s ideology was reduced to three words: “Ricci” and “wise Latina.” The rest of her judicial record (and the fact that she was originally appointed to the federal bench by a Republican President) drifted into the background. While it seemed more than a tad ridiculous, scholars could offer little to dispute the very narrowly focused attacks on then-Judge Sotomayor’s ideology beyond subjective assessments of her record.
Last time I was a guest here, we were in the midst of President Obama’s attempts to have Justice Sotomayor confirmed and I was discussing my method for assessing whether she was a judicial activist. This time around, I want to move from the concept of “activism” to “ideology.” In a new article that I have been working on, I discuss why empirical legal studies have failed in this area and offer a new method for addressing such conflicts in the future. I will be blogging about the problems with measuring ideology in a few posts this month.