From BreakingLegalnews.com:

Controversial court nominee survives Senate test

Political and Legal – POSTED: 2009/11/18 06:23

Democrats on Tuesday crushed a Senate filibuster against a controversial appeals court nominee, demonstrating to Republicans they can’t stop President Barack Obama from turning the federal judiciary to the left.
The 70-29 vote limited debate over the qualifications of U.S. District Judge David Hamilton of Indiana, and assured his elevation to the Chicago-based appeals court. Sixty votes were needed to end the filibuster, but confirmation only requires a simple majority of the 100-member Senate.
Ten Republicans repudiated their own party leaders and voted to limit debate. The Obama administration made a crucial decision from the outset by getting the support of Hamilton’s home-state Republican senator, Richard Lugar.
The vote emphatically warned Republicans that with only 40 senators, they’re too outnumbered to prevent Obama from making major inroads into a judiciary that was populated over eight years with conservative judges chosen by President George W. Bush.
Republicans have objected to holding a vote on Hamilton’s confirmation since June, when the Judiciary Committee reported his nomination favorably to the full Senate.
Conservative Republican senators and their judicial-watching outside groups then launched a major political assault on Hamilton.
They criticized his rulings against Christian prayers in the Indiana legislature and against a menorah in the Indiana Municipal Building’s holiday display.

So building off my comments from yesterday I’d like to raise the issue of what political science research has to say about the legitimacy of judicial institutions, point out an apparent discrepancy in research on different aspects of our legal system, and ask (somewhat provocatively) what our role is as academics in informing the general public about the “realities” of how that system works when they seem to operate in stark contrast to traditional understandings of what our legal system is designed to do.
First, starting with Pritchett (1942), decades of behavioral research reveals that judges vote disproportionately in favor of outcomes that are consistent with their political preferences. These results stand in direct contrast to the notions that unelected judges derive authority from their expertise and ability to act as unbiased “interpreters of the law.” Now clearly we need some sort of third party arbitrators to resolve disputes that inevitably arise between people in our society – the question is why do judges get to make those determinations. The answer according to democratic theory is because they are experts in legal interpretation and will make judgments according to that expertise. Empirical findings however reveal the strong influence of other factors including political preference and ideology. Concerns about the equal administration of justice and the fairness of judicial outcomes are necessarily implicated when outcomes have more to do with the idiosyncratic preferences of who is on the bench than what the law requires under particular circumstances. Now this is not really the fault of the framers – they didn’t know better than to put their faith in traditional notions of legitimate judicial authority deriving from objective exercise of legal expertise – but after 50 years of empirical research don’t we know better now? Isn’t it time to reconcile outdated notions of judicial authority with current understandings of influences on judicial behavior? Political scientists have seemed content with demonstrating the fallacy of formalistic notions of legal decision making over the last half century – but we haven’t really adequately dealt with the normative implications of these findings.
More than this, research on public opinion on the legal system seems to celebrate the fact that citizens generally hold the courts and judges in high esteem compared to other institutions and political officials based on what Gibson and Caldeira have called “legitimizing myths” about how judges and the court system operates. Is this really cause for celebration? Should we be happy that people come to value courts based on misconceptions about how they operate? There is even research that suggests that people can hold courts in high esteem, at the same time they understand that political factors often come into play in the decisions of judges. Shouldn’t someone be pointing out the inconsistency in these two beliefs if part of what our legal system is designed to do is treat individuals equally without bias?
Now of course as someone who has been assigned the role of “guest blogger” my comments here are intentionally designed to be provocative. But I guess I’m wondering what the larger role of academics is in shaping public perceptions of the political institutions that are the subject of our research. The issue seems to come to a head whenever a new Supreme Court justice is nominated. Political scientists often want to throw tomatoes at C-SPAN when we hear judges talking about being umpires, objectively calling balls and strikes, because it is so contrary to our understanding of the judging in the legal system actually works. But the dog and pony show has a purpose. We, as a society, need our myths. OR we need a completely different justification of why judges get to make the decisions they do. To debunk the former without coming up with the latter would cause extreme discomfort if citizens started to really think about the democratic implications of what we do as empirical scholars. Maybe it’s a good thing that they don’t as a matter of routine. But to what extent to we have an obligation to point out these inconsistencies between the unrealistic requirements of democratic theory and the way the legal system actually works…

The proposed Coburn amendment to eliminate the political science division of the National Science Foundation and funding for political science research has once again raised the question of whether academic research is relevant to real-world problems.

The controversy over electing judges provides interesting insight into this question, particularly when examining the reactions of the advocacy community to scientific studies of judicial elections published in the nation’s leading academic journals, law reviews, and commercial presses. While there certainly are valid criticisms of empirical studies of judicial selection, it simply is the case that empirical findings that contradict political strategies and goals will not be acknowledged and incorporated into the public dialogue no matter how relevant or compelling.

It has not mattered, for example, that empirical evidence has shown for decades that there are no measurable differences between judges chosen in partisan elections and judges chosen by other “less political” methods. Nor have many in the “reform”  community demonstrated concern with the fact that nonpartisan elections effectively disenfranchise large segments of the electorate, raise the costs of seeking office, and open supreme court races to idiosyncratic forces. Similarly, recent evidence showing that confidence in courts is not lower in states using partisan elections has not been incorporated into the public dialogue, or the fact that elections are perhaps the most powerful legitimacy-conferring institutions in the world.

The bottom line is that contradictory evidence is irrelevant to actors pursuing their own agendas, an irony in the case of judicial selection since many of the most aggressive advocates against judicial elections are judges and attorneys. The same evidence also may seem, without effort to understand it, incomprehensible.

In fact, many advocates in the judicial selection controversy engage in forms of fact-finding quite removed from the standards and practices of scientific journals in political science, including the use of anecdotes to claim general tendencies or to discredit them, public opinion polls with biased question wording and flawed sampling strategies, incorrect and selective interpretation of poll results, and reliance on the opinions of “experts” as concrete evidence of problems that cannot yet be seen but nonetheless purportedly are looming. These are attempts to seek the truth but often produce evidence that does not withstand more rigorous scientific scrutiny.

There is another kind of problem, however, quite apart from sincere though flawed attempts to seek the truth. Best explained by Princeton University Professor Emeritus Harry Frankfurt in his illuminating essay On Bullshit, there is a distinct form of expression – “bullshit” – the defining characteristic of which is offering statements to suit one’s own purpose without much regard for whether the statements actually are true or false.  Given the instrumental nature of political action (no matter how altruistically the goals of many advocacy organizations are stated) and the willingness to argue positions that may lack empirical support, academic work is ignored or dismissed, usually with flimsy arguments not befitting a badly educated high school debate team (more on this in my next post). As part of this, econometrics become easy to caricature among non-academics as being divorced from reality or as having some fatal flaw. Thus, “bullshit” is a powerful countervailing force to science.

In short, science and politics often are not compatible, and no amount of careful study, scientific rigor, or attempts to contribute constructively to the political process will change that. Even so, truth intrinsically is important, and the difficulties political scientists may encounter when engaging political actors does not render the enterprise any less worthwhile.

Melinda Gann Hall

In the midst of furloughs and massive cut backs at many state schools, the University of Alabama’s announcement of Nick Saban’s 42.35 million dollar coaching contract is almost humorous … almost. The Faculty Lounge details the announcement here. But college sports pay for everything else at the university, right? As you may recall we already dealt with this question.

I did some hiking (glorified walking) at Taughannock Falls yesterday. It’s about 10 miles outside of Ithaca, NY. It takes about an hour to an hour and a half to do the loop around the falls. Here are some pictures.

Here's a nice view of the gorge

Here's a rickety bridge you cross to get over the falls

And finally, here's the view of the falls from said rickety bridge

In my last blog, I noted the problem of selection bias in studying appellate court decisions and also pointed out that Harold Spaeth is coding a sample of denied certiorari petitions that will help us assess the degree to which this problem exists at the SCOTUS. In a recent email from him, he let me know that the Burger Court sample is completed (available at the South Carolina JURI site), and that:
“I am not quite finished coding Blackmun’s docket sheets on the Rehnquist Court (1986-94), but I expect to finish this database by early Fall. It will contain a sample of the Court’s denied petitions allowing individuals to ascertain the proportion of petitions dealing with various legal and constitutional provisions that the Court accepted. No longer will any basis exist for selecting on the dependent variable. The direction of the denied petitions is also provided along with other more or less pertinent data.”
Thanks to Harold for this information.
Of course, this does not solve the problem of selection bias at the U.S. Courts of Appeals or even the trial courts, since the concern could be expressed that disputes settle and therefore there is selection bias in any study of judicial decision making.
This problem ultimately cannot be resolved completely because, as I said in my last post, at some point, it becomes turtles all the way down. Of course, the extent to which selection bias matters depends on the questions the researcher is asking. If you are using court cases as your database to say something about disputes writ large, you’ve got a problem. But if you are studying court cases to say something about court cases, well, then I’m less concerned, even in appellate courts–assuming they have mandatory dockets.  The problem obviously becomes more pronounced when courts exercise discretion over their own dockets.

In my next blog, I’ll have something more to say abuot alleged inaccuracies or miscodings in the Spaeth or Songer Databases.

it makes headlines — Judicial politics scholar Chris Zorn (and methodologist Jeff Gill) are featured in the Wall Street Journal discussing the DH rule and political ideology.

This morning, CNN released the results of a survey regarding public support for Sonia Sotomayor’s nomination to the Supreme Court.  About 47% of Americans support confirmation while 40% oppose it (13% had “no opinion”).  To provide context, these results suggest that she is faring better than Harriet Miers did at this point.  The percent supporting confirmation are comparable to Alito’s (and probably within the margin of error for Ginsburg and Thomas at a comparable point in their confirmation processes), but she also has more negative ratings than Alito, Ginsburg, and Thomas had.  Naturally, though, her qualifications (“Well Qualified” ABA rating as noted by Paul Collins noted below) along with 60 Democratic votes in the Senate continue to make this look like a nomination that will end with a successful confirmation.

One of the problems in answering questions as to how liberal or conservative a judge might be is coming up with some acceptable measure of ideology. There is no generally accepted measure of lower court ideology. A judge’s own partisan affiliation and the ideology of a judge’s appointing president have often been employed as useful surrogates of judicial attitudes. Scholars have sometimes ignored the ideology of the judge, and inferred his or her ideology from that of the appointing president. For example, Tate and Handberg (1991) proposed a measure of the ideology of the appointing president: -1 for ideologically conservative and presidents, 0 for nonideological presidents, and 1 for ideologically liberal presidents.
A recent and now widely used ideology measure was devised by Giles, Hettinger and Pepper (2001). This uses the Poole Nominate scores of the home state senators or of the nominating president if there is no home state senator of the same party as the president. The scores can range from -1 (most liberal) to +1 (most conservative). If we examine the nomination of Sotomayor to the United States District Court in 1992, she was nominated by a Republican president with a Republican home state Senator – Al D’Amato. That would peg her ideology at the time at .14, very moderate and just slightly conservative, befitting a then Republican Senator representing a very Democratic state. However, it was well known that both New York Senators employed a courtesy relationship in reference to judicial appointments. Depending upon the party of the president, the Senator of the same party would get 3 out of every 4 judicial appointments and the other Senator 1 out of every 4. Sotomayor was clearly an appointment of Daniel Moynihan. So if we peg the ideology to Moynihan, -.562, then Sotomayor is very liberal. Of course this shows one of the problems with this particular measure, and indeed with any measure of ideology.
Her appointment in 1998 to the Second Circuit presents no such problem. Clinton was president, so we can use Moynihan’s score, which at this time was even more liberal, – .614. Thus by using the Giles, et. al. measure, Sotomayor is very liberal.
Another measure was developed by a former colleague of mine, Dave Nixon, developed a more direct measure for each judge. We first used this in a paper published in the Washington University Journal of Law and Policy (2003), and Scott Graves and I use it in our forthcoming book on recess appointments and I use it some other publications and it will be in another forthcoming book of mine of Courts and Tax policy. The calculation begins by using the nominate scores of congressional representatives who later served as federal judges as a formula for determining a nominate score comparable to Nominate scores. The formula then uses various circumstances surrounding the appointment such as unified government, wartime, party of the judge and party of the president, among other factors. Unlike the Giles, et. al. scores the Nixon/Howard scores allow for differences for judges even if appointed from the same state by the same president. The scores range from about -5, most liberal to + 5, most conservative.
Given all that, what is Sotomayor’s ideology based on both appointments? Although appointed first by a Republican president and then by a Democratic president, her ideology is similar in both, particularly since both took place under divided government. Her first score is – .21, while her second is -.28. Both liberal, to be sure, but both more moderate than the Giles, et. al. score.
Which is correct, what better predicts her future voting? Who knows, perhaps neither. We have not even begun to discuss the Segal Cover measure, more on that later.

Bob

… something light and fun to get you through the rest of the week – video of a guy named Ray attempting to break various items while wearing a strong man suit. The circus music and chimpanzee sounds are an especially nice touch. Thank goodness for the serious and thoughtful posting activity of our guest blogger program or you’d probably just get silly stuff like this from me during the summer.

For those of you who are frequent Adam Carolla podcast listeners and know Ray’s backstories, this will be especially fun. But even if you have no idea who he is, it’s still somewhat mindlessly entertaining.

A word of caution: it’s all fairly wholesome fun, but there is some course language when Ray gets frustrated. For what it’s worth, the link (above) works better than the embedded video below, which requires more manual labor to get the videos to all run one after the other. 

I want to thank Jeff and Andy for the introduction and opportunity to guest blog periodically on their website. Although I publish on all areas of law and courts, my particular area of expertise is on law and policy and I hope to blog about that in the near future.

However, one thing that is striking to me as I write for a blog that straddles the lines of political science and law are the differences in citation rates between law and political science and even between fields and subfields in political science.

I am very happy that my work appears to be cited highly and I am particularly pleased that many law professors cite my work. In fact, at least half of my citations are in law related journals and law reviews. However, one reason for that is law reviews cite many more sources than political science. The emphasis on footnotes and careful citation is the norm for law reviews. The entire citation process is very different for political science.

Indeed even within political science there are significant differences. In a 2007 article in PS: Political Science and Politics, Mike Giles and Jim Garand note the significantly lower citation rates of articles and books in American Politics (Giles and Garand, 2007 pp. 746-747) as compared to international and comparative studies. In our department we put some emphasis on citations for those seeking promotion and tenure to Associate Professor and it is very important for promotion to full, yet it appears to hurt those who write and research in American Politics as compared to those who specialize in IR and Comparative Politics.

Maybe I should not complain too much because public law encroaches on legal scholarship so we get the benefit of citations in law reviews and law journals.

It seems like Andy and I have gone through endless alternative titles for our book (no, it is not the one pictured above) which should be out this summer on Johns Hopkins Press. However, I’m really glad that none of our tentative titles really rivals (in terms of oddness) any of the titles you will find in Oddee’s collection of strange book titles. You’ll note that one of the books is written by a famous academic. Another one, “Foreskin’s Lament” I have actually read, or more accurately, listened to on Itunes. It’s very funny and you might recognize the author, Shalom Auslander, from his guest appearances on Chicago Public Radio’s program “This American Life.”

• Alcohol and Drugs History Society
• Kaufrman Foundation gives $10 million for law and economics

… the high end financial executives, of course. Gawker provides a funny youtube video chronicling life after the high life in NYC (below). Perhaps this guy can find fulfillment on Odd Todd – a site devoted to helping those who are unemployed pass the time. Warning: pretty much all of the links in this post (and the youtube video) contain what some may consider coarse language and potentially offensive subject matter; nothing horrible, but not “G” rated, by any means.

The Statistical Modeling, Causal Inference, and Social Science Blog has a post on an interesting paper by J.M. Epstein concerning modeling. Here’s an excerpt:

In summary, while most mathematical treatment of statistical modeling tends to be focused purely on prediction, there is a good reason why the cost of interpretation should be considered. Epstein’s list of why interpretability matters should motivate us to care:

1. Explain (very distinct from predict)
2. Guide data collection
3. Illuminate core dynamics
4. Suggest dynamical analogies
5. Discover new questions
6. Promote a scientific habit of mind
7. Bound (bracket) outcomes to plausible ranges
8. Illuminate core uncertainties.
9. Offer crisis options in near-real time
10. Demonstrate tradeoffs / suggest efficiencies
11. Challenge the robustness of prevailing theory through perturbations
12. Expose prevailing wisdom as incompatible with available data
13. Train practitioners
14. Discipline the policy dialogue
15. Educate the general public
16. Reveal the apparently simple (complex) to be complex (simple)

… more specifically on hiring trends, on Leiter and Alfred Brophy on the Faculty Lounge Blog here and here. They make some interesting comments and predictions. I may post on this later when I’ve had more time to think about the topic, but I’ll posit two quick thoughts here: 1) any downturn in the economy creates institutional reactions, true, but it also creates personal reactions to those reactions. If teaching loads go up or tenure becomes more difficult (two of the predicted effects of the economic downturn), then academia becomes less attractive to certain individuals who may pursue alternative career paths. This, in turn, has its own implications. 2) A downturn in the economy also creates opportunities for those institutions who are better situated to deal with it – poaching may become more prevalent as more financially flush institutions are able to attract laterals from relatively less well off institutions.

… of messages left on Sarah Palin’s answering machine after the debate.

While the satirical candidate public service announcement video (below), starring Tina Fey (as Sarah Palin) and Amy Poehler (as Hillary Clinton) is good fun, if you want to see the actual presidential candidate commercials they are available on “The Living Room Candidate.”

Sorry, I just couldn’t resist. This is an awesome photo. 

(hat tip to Volokh blog)

This Marginal Revolution post on faculty subsidization is, um… interesting. And here I was thinking that football paid all faculty salaries

Actually, more interesting is a comment from the post which I provide below the fold.

There may be a way to find out how much the professors within a given department are subsidized by their universities using published information. Look at the required course curriculum for undergraduates and see which and how many out-of-major classes are required by the university for graduation.

If the university’s education program is balanced, then all academic majors will have roughly equal exposure to various disciplines outside their primary fields (for example: a Biology major is required to take an English class and an English major is required to take a Biology class).

But, if the students in one discipline are required to take classes in another, without a reciprocal requirement for the students in the other field to take classes in the first discipline, then the students in the first discipline are being required by the university to subsidize the other discipline. The more one-way the requirements, the more the field is being subsidized. This would be how the university’s administrators communicate the relative values they place upon the various academic majors. 

Posted by: Ironman at Aug 11, 2008 9:00:36 AM