Earlier this month, the Washington Post blogged about a study purporting to show that President Obama’s judicial appointments are (in the words of the headline) “liberal, but not that liberal.” That may well be a fair characterization; anecdotally, it sounds right. But the study purports to do something much more serious than give an off-the-cuff subjective judgment: the study renders this conclusion as an empirical finding. Specifically, the authors, Professors Robert A. Carp (University of Houston) and Kenneth L. Manning (U. Mass.-Dartmouth) analyzed decisions by district court judges from 1933 to the present in order to render conclusions about the overall liberalism of President Obama’s appointees as compared with the appointees of previous Presidents.
The selection of this sample is dubious; as a result, the study does not demonstrate what it purports to demonstrate. The problem is that the authors chose to analyze the decisions of district court judges, who are the most constrained decisionmakers in the federal judicial hierarchy.
District court judges must follow precedent set by the circuit court of appeals in which they sit and also of course the U.S. Supreme Court (which governs the circuits as well as the districts, interpreting federal law for the whole country). Although district judges do have some discretion to fill in gaps in the law and a great deal of discretion over many types of procedural rulings in individual cases, it is often difficult to say – and the study makes no effort to parse out – to what degree the ideological slant of a district judge’s decisions is influenced by her own personal views and to what degree these decisions just reflect a judge who is trying to apply binding precedent.
To the extent precedent plays a role – and I think it plays a significant one, since judges don’t like to get reversed and judges hoping to be elevated to the appeals court don’t want a large record of reversals (in the words of Chief Judge Kozinski of the Ninth Circuit, “every district judge is a circuit judge in waiting; every circuit judge is an associate justice in waiting”) – then what good does it do to compare a district judge sitting today in the Northern District of California (in the Ninth Circuit, one of the more liberal circuits) to a district judge sitting today in the Southern District of Iowa (in the Eighth Circuit, one of the more conservative circuits)? If the California judge is more liberal, is it because he’s an ideologue, or because he is following more liberal appellate precedent? Likewise, why is it meaningful to compare the records of a district judge appointed by LBJ with one appointed by Obama, when the former would spend most of his career applying law handed down by the more liberal Warren Court and the latter would spend most of hers following the dictates of the more conservative Rehnquist and Roberts Courts?
Given these variations in the precedents that apply to different judges at different times and places, one could easily imagine that a jurist of a liberal disposition sitting today in a conservative circuit might render a body of decisions that are more conservative in outcome than the decisions of a conservative-leaning federal jurist appointed in 1969 to a liberal circuit. A more meaningful metric would compare the decisions of district judges within a particular circuit and a particular window of time, rather than lumping eight decades’ worth of judges from all over the country together as if each judge were deciding cases in a jurisprudential vacuum.
The study devotes one page to a discussion of “the ideological climate” the appointees enter, but the authors treat this issue as merely one of “four general factors that determine whether chief executives can obtain a judiciary that is sympathetic to their political values and attitudes,” rather than a serious structural limitation on the methodology of the study. The authors do not appear to have qualified their data analysis in any way to account for issues such as the judicial circuit in which different judges serve or the composition of the Supreme Court at the time the judges served.
A study of judicial decisionmaking could be an important tool to help assess trends among various Presidents’ appointments. But a study’s conclusions are only as good as its design. Without controlling for key variables like circuit and Supreme Court composition, this study tells us very little about the ideological persuasion of President Obama’s judges.
