Standardized Testing for Judicial Nominees?
Over the holiday, my close friend and colleague at the Center for Individual Freedom, Ashton Ellis (who's also an adjunct professor at Pepperdine University's School of Public Policy), called my attention to a rather remarkable story, courtesy of Taegan Goddard's Wonk Wire. It turns out that at least one man wasn't terribly surprised by Chief Justice Roberts' ruling on the ObamaCare case: University of Massachusetts-Dartmouth political scientist Kenneth Manning.
The reason: Manning had actually crunched the numbers. Back in 2005, when Roberts was still every conservatives' favorite blank slate, Manning put his shoulder to the wheel and produced a paper (links to a PDF) synthesizing every one of the Chief-Justice-to-be's votes on the D.C. Court of Appeals and comparing them to the rest of the federal judiciary in order to get a sense of how Roberts' judicial philosophy played out in practice. His conclusion:
I find that Roberts is very conservative in his decision making in criminal justice disputes, and the data suggest that he is exceptionally conservative in civil liberties and rights cases (though the limited numbers of cases in this area restrict the ability to draw any firm conclusions). In labor and economic disputes, however, Judge Roberts has been more liberal than the appellate court average.
After the ObamaCare decision reignited the flame of conservative disappointment with Republican judicial nominees, it seems to me that we may soon be arriving at a place where the judicial "litmus test" becomes quite literal. There's a very real chance that analyses like this could become a standard part of the vetting process for the conservative base, desperate as it now is for assurances that, per The Who, we won't get fooled again.
Ironically, conservatives had to learn through experience with Chief Justice Roberts what we asserted the rest of the country should have known a priori when it came to President Obama: any man who presents himself for high office on the basis of little more than sweet nothings will tend to be a disappointment down the line. Any mechanism which acts as a brake on our credulity in such instances is to be welcomed.
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Apr '12
Re: Standardized Testing for Judicial Nominees?
Roberts initially made the right choice, but didn't have the courage to follow through. I'm always for more vetting of candidates, but I wonder if the study mentioned in the article touched on the correct reason for Robert's betrayal of reality and common sense. If the study had said that Roberts is an "appeaser," has difficulty handling stress, or values popularity more than principles, than I'd be more convinced of its validity.
Re: Standardized Testing for Judicial Nominees?
There's no doubt that studies like this are incapable of reading the "intangibles" (as scouts in professional sports like to say). Still, it's interesting that there were leading indicators of where Roberts might go soft.
I suspect there was a psychological bias at work when it came to conservatives' perceptions of Roberts too. The Harriet Miers nomination came right after his confirmation and we desperately wanted to contrast "the good pick" with "the bad pick." Roberts thus became the Afghanistan to Miers' Iraq, the place where we could be confident that we had done the right thing for the right reasons. After that, serious scrutiny of his record started to decline.
Dec '10
Re: Standardized Testing for Judicial Nominees?
I agree. Roberts' problem was his fetishization of the Court and his general cowardice.
But I have no problem with litmus tests. The Left has had them for years. And I say that president Romney make it clear that if you think this nominee is too conservative, wait until you see the next one.
Jun '11
Re: Standardized Testing for Judicial Nominees?
Maybe we should impose a moratorium on Ivy Leaguers joining the SCOTUS for a couple of decades. God knows there are enough of them there to last for a long time.
Graduates of these institutions -- accustomed to being told all their lives how smart they are -- seem to feel compelled to demonstrate their cleverness, often without regard to how absurd their "cleverness" looks in the real world.
Give me your Belmont University and Pepperdine graduates any day. Their ability to think clearly is largely untainted by a sense of their own wonderful cleverness.
Edited on July 5, 2012 at 8:04pmRe: Standardized Testing for Judicial Nominees?
Just a heads up, Colin -- you're about to be contacted by a couple of university development officers.
My academic midwives thank you.
Colin B Lane:
Give me your Belmont University and Pepperdine graduates any day. Their ability to think clearly is largely untainted by a sense of their own wonderful cleverness. · 4 minutes ago
Edited 3 minutes ago
Dec '10
Re: Standardized Testing for Judicial Nominees?
I'm more radical: I think we need non-lawyers on the SCOTUS. An unelected guild should not have exclusive control over 1/3rd of the government, especially the third that defines Constitutionality.
Jun '12
Re: Standardized Testing for Judicial Nominees?
Colin B Lane: Maybe we should impose a moratorium on Ivy Leaguers joining the SCOTUS for a couple of decades. God knows there are enough of them there to last for a long time.
Graduates of these institutions -- accustomed to being told all their lives how smart they are -- seem to feel compelled to demonstrate their cleverness, often without regard to how absurd their "cleverness" looks in the real world.
Give me your Belmont University and Pepperdine graduates any day. Their ability to think clearly is largely untainted by a sense of their own wonderful cleverness. · 10 minutes ago
Edited 9 minutes ago
Don't you know only the best & brightest get into Ivy League schools!
Dec '10
Re: Standardized Testing for Judicial Nominees?
I'd like to see how many elite Ivy League lawyers could pass an undergraduate course usually titled "Introduction to proof". It usually has no prerequisites but is designed to teach mathematicians how to reason out and write proofs.
Jun '12
Re: Standardized Testing for Judicial Nominees?
It's not so much lawyer vs non lawyer, as it is knowing who you're nominating....and this means having a President who knows what he/she believes in the 1st place.
Dec '10
Re: Standardized Testing for Judicial Nominees?
Valin
It's not so much lawyer vs non lawyer, as it is knowing who you're nominating....and this means having a President who knows what he/she believes in the 1st place. · 4 minutes ago
I don't know that that's a problem, I think it's all about stopping the liberal garment-rending during the nomination process.
But I do think that the inundation of our representative republic by people who belong to the legal profession (and hence have a massive conflict of interest) is a fundamental problem we have.
Jun '11
Re: Standardized Testing for Judicial Nominees?
Valin
It's not so much lawyer vs non lawyer, as it is knowing who you're nominating....and this means having a President who knows what he/she believes in the 1st place. ·
But that's my point. So many Ivy Leaguers (Justices Scalia, Alito and Thomas notwithstanding) are people who crave the adoration of their supreme intelligence and wonderfulness, and they crave it most of all from the very people (New York Times' editors and columnists, e.g.) who are the most out of touch with ordinary Americans.
It's impossible to know exactly "what he/she believes in the 1st place," as you suggest. But it is possible to know the circles they run in and whose adoration they are most likely to seek.
Mar '11
Re: Standardized Testing for Judicial Nominees?
I think going after Ivy Leaguers is barking up the wrong tree.
As you pointed out in the previous comment, all three of the staunch conservative votes on the court are Ivy League graduates. Richard Epstein and John Yoo are Ivy League graduates.
And I imagine any graduate from a less-prestigious law school is equally likely to crave approval from the NYT or the EJ Dionne. Wanting to be loved by the most influential voices is not a unique characteristic of elites, it's part of being human.
We keep looking for easy solutions to difficult problems. There is a natural tendency to give Republican presidents a pass on their Supreme Court nominees as long as it's not someone as blatantly unqualified as Harriet Myers. The reality is that Republicans have to hold their own side under closer scrutiny, because no one else is going to do it for them.
Mar '11
Re: Standardized Testing for Judicial Nominees?
AmishDude
Roberts' problem was his fetishization of the Court and his general cowardice.
But Roberts made this "fetishization" of the Court clear during his nomination process. It's not his fault that conservatives buit him up to be somebody he never claimed he was.
Dec '10
Re: Standardized Testing for Judicial Nominees?
Mendel
There is a natural tendency to give Republican presidents a pass on their Supreme Court nominees as long as it's not someone as blatantly unqualified as Harriet Myers. The reality is that Republicans have to hold their own side under closer scrutiny, because no one else is going to do it for them. · 0 minutes ago
See, I don't get how Harriet Myers was so "unqualified". But I also don't get how the SCOTUS are supposed to be philosopher-kings. She was certainly a "stealth" candidate in that she had not written extensively or been on the bench so that we can guess how she would rule.
But she presumably could read and write in English and she had what many consider to be the other requirement: A law degree.
I admit that I have a little sympathy for Myers because I consider her undergraduate degree in mathematics the highest intellectual hurdle by a potential Justice in many decades.
However, I realize that she was undesirable, I don't get how she is unqualified. If we truly live in a Republic, most of us should be "qualified".
Dec '10
Re: Standardized Testing for Judicial Nominees?
Mendel
AmishDude
Roberts' problem was his fetishization of the Court and his general cowardice.
But Roberts made this "fetishization" of the Court clear during his nomination process. It's not his fault that conservatives buit him up to be somebody he never claimed he was. · 6 minutes ago
Indeed he did, and I thought it was a bit creepy at the time. Frankly, I think people give the Court far too much reverence. They are an unelected institution and should receive, at best, scorn and derision.
Re: Standardized Testing for Judicial Nominees?
Mendel
But Roberts made this "fetishization" of the Court clear during his nomination process. It's not his fault that conservatives buit him up to be somebody he never claimed he was. · 10 minutes ago
Precisely.
Mar '11
Re: Standardized Testing for Judicial Nominees?
AmishDude
See, I don't get how Harriet Myers was so "unqualified". But I also don't get how the SCOTUS are supposed to be philosopher-kings. She was certainly a "stealth" candidate in that she had not written extensively or been on the bench so that we can guess how she would rule.
But she presumably could read and write in English and she had what many consider to be the other requirement: A law degree.
Good point. I suppose a much better description of Myers would be "untested": there simply was not enough evidence, written or otherwise, to demonstrate that she had a minimal fortitude desirable of individuals who should possess a certain level of knowledge and intellectual independence in the face of immense external pressures.
Mar '11
Re: Standardized Testing for Judicial Nominees?
AmishDude
Frankly, I think people give the Court far too much reverence. They are an unelected institution and should receive, at best, scorn and derision.
I agree that the Court should be viewed with extreme suspicion and, when necessary, scorn - but also with obedience. As we debated a few days ago, there is no perfect solution to obtaining a fair and independent judiciary, but try we must. That means walking a fine line between deference and constant watchfulness.
Dec '10
Re: Standardized Testing for Judicial Nominees?
Troy Senik, Ed.
Mendel
But Roberts made this "fetishization" of the Court clear during his nomination process. It's not his fault that conservatives buit him up to be somebody he never claimed he was. · 10 minutes ago
Precisely. · 10 minutes ago
Maybe, but it wasn't clear how that would manifest itself. I suppose we read into it that he would be reluctant to be activist. But with this decision, he did what I thought would be impossible.
Roberts' decision was activist in not overturning the law. If not for the conclusion, you could infer that he'd declared it unconstitutional.
I think most people predicted a muddled ruling in which the mandate was unconstitutional but the rest was upheld. True, that would have effectively killed the law, but it would have been in keeping with expectations from Roberts.
Jan '11
Re: Standardized Testing for Judicial Nominees?
The Court has authority; it doesn't make them right.
For instance, when a quarterback in the huddle calls a play, it doesn't matter if everyone in the stadium and in the country knows that it's the wrong call. That's the play you run.
In this case, on fourth and goal from the one, our quarterback called a punt. Yes, it was the wrong call. Yes, we had other plays that would have scored the touchdown easily. But that's the play he called, so that's what we have to go with.
Just because the Court has authority, and we're stuck obeying its decisions, doesn't mean that we have to pretend it's brilliant.
The Court has the final say -only because- someone needs to have it.
Edited on July 5, 2012 at 9:53pm