Academic

Scott & Martinke on Judicial Selecton & Judicial Choice

By Lawrence Solum

Kevin M. Scott (Administrative Office of the U.S. Courts) & Wendy L. Martinek (State University of New York - Department of Political Science) have posted Judicial Selection and Judicial Choice on SSRN. Here is the abstract:

The divisiveness of the lower federal court confirmation process has been the focus of extensive commentary by political pundits and scholars alike. The engine driving the controversy is the notion that who sits on the federal bench makes a difference for subsequent policy outcomes. However, while a great deal of attention has been paid to differences in the decision making of judges appointed by different presidents, virtually no attention has been paid to whether the concerns of actors involved in the process have been borne out in the behavior of nominees who were controversial at the time of their nomination to the bench (but ultimately were successful in securing confirmation). In other words, we have no rigorous, systematic evidence as to whether controversial nominees do, in fact, behave differently than other nominees once they don the black robe. Using data from 1977-2002 on nominations to the U.S. Courts of Appeals and the voting behavior of court of appeals jurists for the same period, here we empirically investigate whether judges who were considered more controversial during their confirmation process are more ideologically-driven in their voting behavior than other (less controversial) judges.

And from the paper:

Our purpose here has been to bring evidence to bear precisely on the question of whether individuals characterized as extreme during the confirmation process are more ideological in their behavior on the bench compared to their colleagues who were not so labeled. Drawing from the well developed literature on judicial selection in addition to the extensive scholarship on judicial behavior, we developed models of senatorial confirmation and judicial decision making and linked them with the use of a Heckman- style selection model. Our key findings are two-fold. First, the statistical evidence indicates that there is a selection effect that links confirmation success and judicial vote choice. Second, though interest group opposition matters in terms of shaping the likelihood of senatorial confirmation, individuals who attracted interest group opposition but were nonetheless successful in securing confirmation are no more or less ideological in their voting behavior than their colleagues on the bench who did not attract interest group opposition during their own confirmation process. Considered jointly, these findings indicate that interest groups are largely successful in preventing nominees who they consider objectionable from taking a seat on the bench but that objectionable nominees who get through the process are no more extreme in their behavior than other (nonobjectionable) judges.

I just read this interesting paper, which is recommended.

Full post as published by Legal Theory Blog on September 24, 2009 (boomark / email).