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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Dec '10
Re: Standardized Testing for Judicial Nominees?
Mendel
Good point. I suppose a much better description of Myers would be "untested": · 10 minutes ago
For the record, I think my disdain for both elites and the legal profession would make me ideally suited for the court.
Mendel
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. · 8 minutes ago
I disagree with this. I don't think that our elites deserve any quarter. We are a representative republic and my opinion on what the Constitution means is as valid as anyone else's.
And I don't think that we should delude ourselves into thinking we have a fair and independent judiciary. It's an axiom of conservatism that men are flawed and do things to benefit themselves when they can.
Dec '10
Re: Standardized Testing for Judicial Nominees?
KC Mulville
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. · 8 minutes ago
Edited 7 minutes ago
Very well-said. Except that Roberts called a punt on the 1-yard line on second-down.
Mar '11
Re: Standardized Testing for Judicial Nominees?
AmishDude
And I don't think that we should delude ourselves into thinking we have a fair and independent judiciary. It's an axiom of conservatism that men are flawed and do things to benefit themselves when they can.
I agree completely. The question is, what should we do about it? I only see a few options:
a) ignore the court when we disagree with it
b) threaten justices with impeachment or questioning when we disagree with them
c) pay closer attention when choosing justices, or
d) throw our hands up and decide that if the Court cannot be apolitical, we might as well go whole hog and nominate politicians to it
Unfortunately, a, b, and d are hallmarks of banana republics - picking better justices is about all we can do, little help though it may be.
But to get back to the main point of this thread, in this case more thorough vetting of Roberts may have indeed sent up some red flags.
Oct '10
Re: Standardized Testing for Judicial Nominees?
Roberts puts the hind in hindsight.
Jul '12
Re: Standardized Testing for Judicial Nominees?
I am sorry but I need to point out that we are forgetting the key part of this "puzzle". There were potential candidates such has Lutig and others who were more reliable in terms of their clear conservativism. The reason Bush ("aided" by supposed experts whom"advised" him on this matter) chose Roberts was because he appeared "easier" to confirm. That is, his conservatism was more "under wraps" than others, and so, he would not offend the kind of senator whose vote was sought. This was the premise that was mistaken and which leads us astray time and again. Earl Warren, Brennan, Stevens, O'Connor, Souter and yes, Roberts, we're alll chosen for the wrong reasons . They were not the ones who, in each case, was the best conservative choice. Look, Reagan chose O'Connor before he chose Scalia. My conclusion from this is that we have to articulate ( to ourselves, for starters) what it is we are really looking for in a Justice, and for that matter, in candidates for President and Senator as well. Too often we err in this regard. We need better self -knowledge before we can articulate (and defend) what we stand for.
Apr '12
Re: Standardized Testing for Judicial Nominees?
Troy,
That's the problem - the methodology of the study did not consider the "intangibles" that were salient in Robert's decision. It's possible the study was correct by chance rather than due to any legitamite predictive value. Roberts would've made the right decision but for him buckling under the heavy pressure of determining that 2+2 = 4. Again, highly favor more vetting of judges, but we need to determine the best methodology.
I would wager, pun intended, that a prediction market is the best way to determine how judges will behave down the road. Setting up the criteria for betting would be an interesting and specialized problem to solve. Any thoughts?
Edited on July 6, 2012 at 8:33amJul '12
Re: Standardized Testing for Judicial Nominees?
I should also add to the list Anthony Kennedy, who was chosen by Reagan after Bork crashed. It was those weak GOP senators, starting with Specter, which caused Bork to lose.