Everyday Politics Blog

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.

Should They Look Like Me?

By Laura McKenna

In 2001, at the University of California at Berkeley, Sonia Sotomayor said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

Sotomayor has been nominated for the Supreme Court by President Obama. She is under much scrutiny as the public tries to guess how she will rule on hot button issues, such as Affirmative Action, abortion, immigration, and church-state issues. That 2001 statement has been the focus of much controversy in the past couple of weeks.

In that speech, Sotomayor seems to say that her background enabled her to have a unique understanding of the nuances in cases that involved minorities and women. A judge with a different background would not be as sensitive. 

Rush Limbaugh has been quick to call her a racist for those remarks, but her comments can not be brushed off so easily. It taps into an old debate in America. Does race and gender influence decision-making?

In political science, we use the terms, descriptive representation and substantive representation.

Descriptive representation is the belief that political representatives should reflect the ethnic and gender composition of their constituency. A representative from the Harlem district should be black, while the representative from Utah should be white and Mormon. In addition, the entire body should be 50% female.

Substantive representation is the belief that representatives should reflect the political preferences of their constituencies, and their skin color and gender are irrelevant. An old white guy can effectively advocate for the needs of a poor, minority population.

In one study, Carol M. Swain explored this issue by looking at Congressional voting decisions. She found that liberal white members of Congress represented black interests as strongly as did black representatives. Liberal white Congressmen had nearly the same voting records as their black counterparts.

However, these findings may not necessarily be applied to Supreme Court justices. Decision making may be more simple for members of Congress than Supreme Court judges. They are able to mirror decision making of their colleagues, and they have case work and the need for reelection to keep them very attuned to their constituency's needs. A Supreme Court has few colleagues and no regular contact with the public. In that case, perhaps the need for descriptive representation is more critical.

This matter is far from settled. It will be interesting to see if this matter is discussed during the confirmation hearings over the summer.