“[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.

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5 Responses

  1. Bryan Gividen says:

    The working paper is interesting. I read the abstract, glanced over introductory paragraphs, and looked at the regression results. I searched for why the D.C. Circuit was excluded, but I didn’t find anything. Is there a reason for that exclusion?

  2. anon says:

    Of course, Goodwin Lui cannot complain about someone using the “out of mainstream” motto to oppose him because he used that same motto to oppose Alito. What goes around comes around. Meanwhile, for those of us who actually read opinions, Sotomayor has long been known as a mediocre judge — her circuit court opinions were nothing but long repetitions of facts and lower-court reasoning, with very thin analysis of her own panel’s decision. Thoroughly useless for precedential purposes. But you can’t seriously raise these issues in the confirmation process — the public doesn’t much care whether a judge is borderline incompetent as a jurist (as Sotomayor surely was); the public only cares how the judge ruled in some politically-charged case, or what the judge wrote in some student-edited leaflet. Sad.

  3. Corey Yung says:


    Because my first idea leading to the gathering of the data was related to my measurement for judicial activism, I was particularly concerned with standards of review. I also hoped to create a measure that would allow for inter-circuit comparisons. In that regard, the D.C. Circuit’s high percentage of administrative law cases with unique standard of review issues made it a bit difficult to integrate. So, I omitted the D.C. Circuit (as well as the Federal Circuit) from my data.

    However, I’m currently in the process of gathering 2009 case data which includes the D.C. and Federal Circuit. I plan to publish scores based upon that data when the dataset construction is complete.


  4. Aren’t there two distinct political “mainstreams”? The elected politician mainstream, and the public mainstream? The existence of issues such as term limits, or illegal immigration, where the opinion of office holders persistently diverges from public opinion would suggest this.

    If that’s the case, it’s quite possible for a judge to be in one mainstream, and well outside the other. (Which they’d likely be in depending on how they got into office…)

  5. Corey Yung says:

    Hi Brett,

    There very well may be multiple political “mainstreams.” Indeed, I would typically expect that the judiciary should reflect a different “mainstream” because it serves a different role in our political system. Judges are charged with finding what is legal and not is what is desirable. The “mainstream” of the judiciary would certainly overlap the public, but is ultimately of a different sort. My research only pertains to the ideologies of judges. I make no attempts to connect that to the general public’s thoughts.