Legal Versus Political Philosophy:

Judge Michael Luttig is generally perceived and described as more "conservative" than Judge J. Harvie Wilkinson III. Thus, I was surprised to read this tidbit in a Washington Post article this weekend:

In a 2002 article in Judicature, published by the nonpartisan American Judicature Society, three political scientists compared Luttig's recent opinions with those of five other appellate court judges considered potential Supreme Court nominees.

They concluded that Luttig's rulings — in the areas of criminal justice, civil rights and liberties and economic and labor regulation — were conservative 68.2 percent of the time. That still made him "consistently conservative," the authors wrote, but not as conservative as the other judges.

The most conservative, the study concluded, was J. Harvie Wilkinson III, Luttig's colleague on the 4th Circuit, who is also considered a potential Supreme Court nominee.

The article suggests that the reason for this counterintuitive result may be Luttig's commitment to textualism as part of his larger judicial philosophy:

Indeed, although Luttig's rhetoric has earned him a reputation as a staunch conservative, his adherence to textualism as he sees it has sometimes led to results that cannot be so easily categorized.

In 2002, Luttig became the first federal appeals judge to rule that inmates have a constitutional right to post-conviction DNA testing to try to prove their innocence, calling it "a matter of basic fairness." In 1999, he granted protection to a female college football kicker under the federal law, known as Title IX, that bans sex discrimination in federally funded educational programs.

This has been noted in the context of the recently-completed Supreme Court term, where in several high-profile cases some of the individual Justice's votes were hard to explain in terms of political ideology, but instead seemed to reflect differences in judicial philosophy, such as principles of federalism. Luttig has articulated his philosophy of textualism in a number of interesting cases over his time on the bench.

The Washington Post article refers to a 2002 article by Manning, published in the journal Judicature (85 JUDICATURE 278, available on Westlaw). Here's a summary of the key chart from that article (Table 3: "Percentage conservative decisions in three case type areas by possible Bush Supreme Court Nominees"):

[Continued Under Hidden Text]


JohnO (mail):
The article essentially admits its principal flaw, the definition of "conservatism." I don't necessarily view a vote against a criminal defendant as a "consevrative" vote from a judicial standpoint. If the defendant is entitled to relief under some statute, I hope that a conservative judge applies the law as written and affords that relief. A judge who tries to evade the laws passed by a democratically elected legislature in order to disfavor criminal defendants isn't my idea of a conservative judge. That's just the flip side of the Warren Court that conservatives have railed against for so long.
7.18.2005 12:10pm
Richard Bellamy (mail):
While that's right in any individual case, one would think that if you combined a large enough body of decisions, you could get some generally valid liberal/conservative biases.

Among two judges, each of which decided 1,000 criminal appeals, it is fairly unlikely that the one who decides for the defendant 600 times just happened to have more pro-defendant statutes invoked thatn the one who decides for the defendant only 400 times.
7.18.2005 12:31pm
While JohnO is correct that the only true measure is how often a judge makes the "right" decision, unfortunately we have no way to track that. The logic goes like this. In a perfect world, X% of criminal defendants have a meritorious issue on appeal. Presumably, there are some hanging judges who will grant relief less than X%, and some bleeding-heart judges who will grant relief more than X%. That doesn't mean that X lies squarely in the middle of the two extremes, but it does suggest that there is a measurable spectrum of results. The perfect judge may be closer to one extreme or the other, but is probably not AT the extreme, because one assumes there will always be at least some loony people who are more extreme than the perfect judge.

Unfortunately, I think conflating the three spectra into one "composite ideology" confuses the issue. If a judge is extremely tough on criminal appellants, but extremely likely to favor corporate regulation, that information is much more valuable than simply coding them as a "moderate" overall. After all, most of us feel that some issues are more important than others, although we likely wouldn't agree on which issues those are.
7.18.2005 12:39pm
Another flaw in the system is that it doesn't measure what the judges would do if they were Supreme Court justices. A "conservative" court of appeals judge may faithfully apply a "liberal" Supreme Court precedent that he or she would reverse on appeal. (Likewise, a "liberal" court of appeals judge may faithfully apply "conservative" precedent.)

This is why it is fair to look at a prospective judge's speeches and law review articles, both of which may provide more reliable predictions of performance as a Supreme Court justice
7.18.2005 1:05pm
Ted (www):
Does the Judicature methodology distinguish between published and unpublished decisions? Some circuits publish a higher percentage of their decisions than others, so if Judicature only looked at published opinions, it prevents efficacious inter-circuit comparisons. In addition, more junior judges are more likely to be assigned less interesting opinions, so one should ideally look at votes, rather than opinions. Finally, the D.C. Circuit will have a different mix of cases than the Tenth Circuit, which will have a different mix of cases than the Second, and so on.

If one disregards these potential flaws, as well as the others already mentioned, it's an interesting coincidence that textualist Judge Easterbrook's percentage is so close to textualist Judge Luttig's percentage.
7.18.2005 2:45pm
erp (mail):
In a 2002 article in Judicature, published by the nonpartisan American Judicature Society, three political scientists .. . . .

Okay. These guys are liberal about 87.9% of the time, barking moonbats 6.3% of the time, and trying to recover from the stress of never knowing when they're on vacation the rest of the time.

See it's not even necessary to do a study or do interviews or take a poll.
7.18.2005 4:05pm
Speaking of different dockets, I imagine the Calif. S. Ct. gets a very different mix than the circuit courts of appeals, which might likely account for Janice Rodgers Brown's surprising "liberal" ranking.
7.18.2005 8:11pm
James Kabala (mail):
Wasn't Brown regarded by everyone, even fellow conservatives, as being on the extreme far right? I guess no Lochner-related cases came up during the time surveyed.
7.18.2005 10:50pm