How Unpredictable Are Judicial Appointments?

By Scott Lemieux

During the confirmation hearings for Sonia Sotomayor, President Obama's first Supreme Court nominee, you're almost certain to multiple pundits say that judicial appointments are unpredictable and often surprise the presidents who nominate them.    But is this true, especially in the modern era?   Consider this data from Lee Epstein and Jeffrey Segal's Advice and Consent, a very useful political science analysis of the judicial confirmation process:

I grant that no characterization of judicial or presidential ideology is beyond dispute -- certainly, if I were evaluating the expected ideology of presidents subjectively I would characterize Johnson as substantially more liberal than Kennedy or Clinton (which would actually make the fit between presidential and judicial ideology tighter.)   Similarly, with judges there may be room for dispute in close cases: whether one considers, say, White or Breyer more conservative requires judgments in coding opinions and weighting different aspects of judicial ideology that reasonable scholars could make the other way.  

Still, I think this is persuasive evidence that judicial appointments are in fact quite predictable, and countervailing anecdotal examples will tend to be exceptions that prove the rule.     It's true, for example, that Eisenhower picked two liberal icons (Brennan and Warren) and two relatively moderate conservatives (the second Justice Harlan and Potter "I know it when I see it" Stewart.)   But this is easily explained by the fact that Eisenhower was 1)a very moderate Republican 2)who didn't particularly care about the ideology of his judicial appointments.   There was certainly no reason to believe that Warren and especially Brennan would be conservative justices; they can't be considered "unpredictable."    I think the same can be said for President Reagan's pick of O'Connor or Bush's pick of Souter -- nether had records that would expect them to have been conservative justices in the mold of Thomas or Rehnquist.     And in a couple cases Republicans presidents made moderate picks not because they thought these picks were staunch conservatives but because the Senate rejected more conservative choices (Harry Blackmun wrote Anthony Kennedy a note early in his tenure welcoming him to the "#3 club" as they both were the third choice of their nominating president.)

I don't mean to overstate the precision of the conclusions that can be drawn from this data.   Especially since Sotomayor has spent most of her career as a federal appellate judge rather than in the executive branch or academia, there is some uncertainty about what kind of judge she will be.   She might be, if not a Douglas or Mashall, surprsingly liberal, perhaps to the left of Ginsburg.   Or she could be quite moderate, if perhaps not as centrist as Breyer.    But it would be an unprecedented upset if she were anything but a consistent member of the current Court's liberal wing.

Comments

[laura]

Great post, Scott.

[Bill]

I don't have the book in front of me, but I think the measure that Epstein and Segal use for measuring judicial ideology is newspaper editorial evaluation at time of confirmation, not judicial opinions. Up-to-date numbers for Robert's and Alito is found on Segal's web site. (I don't remember the measure used for presidents, but I agree that I would put Johnson to the left of Kennedy and Clinton.)

Also if you were to reorder the nominations chronologically by president you will get a pretty good picture of the ideological changes on the court since the 1950s.

[Scott Lemieux]

Bill--I'm on the road so I also don't have the book in front of me, but I believe you're correct; I'll correct when I get back. (The general point stands either way, I think.)