[Orin Kerr, July 20, 2005 at 5:18pm] Trackbacks
How Roberts Voted on the DC Circuit:
Over at The Supreme Court Nomination Blog, Kevin Russell, Anisha Dasgupta and Brian Fletcher have looked at John Roberts' complete voting record on the DC Circuit, and conclude that it didn't show any particular ideological patterns:
While Judge Roberts agreed most often with some of the court's most conservative members (agreeing nearly 100% of the time with judges Ginsburg and Silberman), he agreed nearly as often with some of its most liberal members (agreeing 95% of the time with judges Rogers and Garland). The two judges with whom he disagreed the most were relatively liberal judge Edwards (disagreeing in whole or part 18% of the time) and quite conservative senior judge Williams (10%).
  Of course, as they note, it's hard to read too much into this: Roberts has been on the DC Circuit for only a brief time, and a very high percentage of DC Circuit opinions are unanimous.
Steve:
As I recall, Ruth Bader Ginsburg was on the same court and clocked in with a very moderate result using the same test, and yet conservatives refuse to acknowledge that she was anything other than an ultra-liberal nominee, based upon her former position at the ACLU. So, um, I think the age of objective evidence might be over when it comes to Supreme Court nominations.
7.20.2005 6:28pm
Justice Fuller:
Steve,

Actually, Ginsburg was applauded by most Republicans, and was confirmed by an overwhelming vote of 97-3. So maybe objective evidence is still worth something.
7.20.2005 6:31pm
John Jenkins (mail):
Some of Ginsburg's writings were quite liberal (i.e. Sex Bias in the U.S. Code); so much so that it would be reasonable to conclude that she was very liberal. What this tells us more than anything is that a nominee's voting patterns on a lower court tell us nothing about whether the person is personally liberal or conservative.
7.20.2005 6:33pm
John Jenkins (mail):
J.F., Maybe it tells us that the Republicans who voted for her accepted that the President had the appointment power and that she was qualified to do the job, despite their disagreements with her.
7.20.2005 6:38pm
Steve:
My view is that Ginsburg was viewed as relatively moderate at the time, but that revisionist history has painted her as a hardcore liberal, so as to support the argument "Clinton got a hardcore liberal 97-3, so Bush is entitled to a hardcore conservative." The opposing view is, uh, something like what Mr. Jenkins just said.
7.20.2005 6:57pm
jgshapiro (mail):
Maybe it tells us that the Republicans who voted for her accepted that the President had the appointment power and that she was qualified to do the job, despite their disagreements with her.

I doubt it. Do you think Abner Mikva, Harry Edwards or Patricia Wald -- all of whom were on the DC Circuit at the time, but were considered more liberal than Ginsburg -- would have also been confirmed with Republican votes based on this theory? What about Laurence Tribe or Stephen Reinhardt? The Republicans let Ginsburg through without a fight because they realized she was the best they could hope for from a Democratic president

The same holds true for the Democrats. They couldn't stop Reagan from picking someone generally conservative (Kennedy), but they could (and did) stop him from picking someone really conservative (Bork).

I think both parties recognize that when they do not control the White House, they don't get to dictate the pick, but they still have the ability to influence it toward moderation by their ability to block candidates that are considered too far towards the other extreme.

Of course, that won't stop either party from complaining when they are forced to moderate their own picks, but hypocrisy is nothing new in Washington.
7.20.2005 6:59pm
John Jenkins (mail):
I don't know what the contemporaneous view of Ginsburg actually was, I only know what positions she has actually taken. That still supports the position that a lower court voting record does not really indicate how someone will behave on the Supreme Court (admittedly with a ridiculously smll sample from which to generalize).

I don't find tit for tat arugments to be very persuasive either. I just don't think that a Senator has any right or reason to ask a judge how exactly a judge will rule in a given situation for any number of reasons (judicial integrity, separation of powers). The nomination and advice and consent powers should not be read as insuring outcomes, but rather insuring that quality people get the jobs such as accomplished lawyers like Ginsburg and Roberts. (that's a decent comparison between the two).
7.20.2005 7:10pm
(c):
Correct me if I'm wrong but wasn't it Hatch that suggested Ginsburg to Clinton. I would say that's pretty bi partisan. And not the nomination of an ultra liberal.
7.20.2005 7:18pm
Challenge:
I thought he suggested Breyer, who really is a moderate. Maybe he suggested them both.
7.20.2005 8:09pm
(c):
It looks like Orin (Kerr) has already addressed the Hatch/Clinton Argument.

7.20.2005 8:28pm
(c):
http://volokh.com/posts/1120575790.shtml
7.20.2005 8:29pm
frank cross (mail):
Back on the point, agreement numbers at the circuit court don't mean too much. Dissents are pretty rare, given the workload. Even if a judge doesn't care for an opinion, he or she tends to go along if two colleagues are committed to it. To figure him out, you have to find out when and why he dissents. Dissenting reveals the true stripes of the circuit court judge and what he cares about. In the Edwards/Williams cases, they may have been the dissenters. But you can still learn a little from those cases, because Roberts was a swing vote and could have made the dissenters a majority opinion.

I trust someone will break this down and do the research.
7.20.2005 8:46pm
Fishbane:
I'm just depressed that choices like who influences national policy, such as these, are so political that people on "both" sides would rather score points than get a reasonable person in.
7.20.2005 10:13pm
John Jenkins (mail):
That's kind of the point; premises have so far diverged that what is reasonable to us differs.
7.20.2005 10:23pm
Splunge (mail):
With respect, Mr. Jenkins, I disagree. The most violent disagreements are frequently found amongst partners in a venture going fairly but not perfectly well, and over what outsiders consider picayune points of orthodoxy.

I think the bald truth is that the United States has almost never been as prosperous, internationally dominant, and free from serious external threat as it is today, and its internal social myths are actually fairly homogeneous if we compare to other periods in history. The most rabid Democratic agenda hardly compares to a full-bore Communist revolution, as might plausibly have been floated in 1933, and the most fanatical Republican is hardly advocating a libertarian utopia in which the standing army and income tax are abolished, as some wanted in 1790.

Today we fight with fanatical passion over whether the UN should be reformed slowly with tough love or quickly with curmudgeonly rhetoric, over whether we should plan on bringing troops home from Iraq in 2 years or 10, over absurdly pale shades of "corruption" in office (comparing Plamegate to Watergate, let alone Tammany Hall), and over whether the Federnal government should dispose of 26% or 24% of the GDP. Not meaningless issues, to be sure, but hardly shaking the bedrock of the Republic.

In truth, we are the victims of our success. We are so successful as a country, maybe even spoiled as citizens, that we have mostly forgotten what a true national crucible is like -- e.g. the Great Depression or Civil War.
7.20.2005 11:11pm
Elizabeth:
Why do DC Circuit opinions shed so little light on a nominee's subsequent behavior on the Supreme Court? Do not overlook the fact that a high percentage of CADC cases relate to the extremely dry, apolitical work of supervising the federal agencies. Anyone who has had to sit down with a five-inch thick book of FERC materials in order to determine whether the agency acted in an arbitrary or capricious manner or construed its governing statute reasonably will have this indelibly etched in his/her memory. It is not surprising to me at all, given this docket, that Roberts' brief tenure on the court would have yielded very few tidbits of the kind that excite folks in the real world.
7.20.2005 11:18pm