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The "Most-Liberal" Nominee in Decades?

The Ninth Justice blog reports that, according to the Segal-Cover ranking system, Sonia Sotomayor is the most liberal nominee to the Supreme Court in forty years -- the most liberal since Thurgood Marshall in 1967 How could that be?

Segal-Cover rankings evaluate the perceived ideology of judicial nominees by examining how newspaper editorials evaluate their qualifications and ideology. Newspapers have given Sotomayor high marks for her experience -- earning her a 0.8 qualification score. (0 is unqualified; 1 is perfectly qualified.) Yet newspapers have also divided over her ideoloogy -- earning her a 0.79 on ideology. (0 is conservative; 1 is liberal.) For comparison purposes, he scores of other judicial nominees can be seen here.)

Now recall that there have only been two Democratic nominees since President Johnson nominated Thurgood Marshall in 1967 -- Stephen Breyer and Ruth Bader Ginsburg. So, it's possible that Sotomayor could be the "most liberal" nominee without concluding that she's that much more liberal than current justices, at least at the time of nomination. Given the observed ideological drift of Supreme Court justices, to say she's the most liberal nominee is not the same thing as saying she'd be the most liberal justice.

Stony Brook's Jeffrey Segal, who helped develop the system, thinks the focus on the Ricci case and other specific controversies may have played a role. "These scores represent to some extent a fixture on what's current, not necessarily what the court would see," he told Ninth Justice. He also stresses that the system evaluates the perceived ideology of the nominee, and is not a prediction of how a given justice would vote on the Court.

Another possible explanation for Judge Sotomayor's liberal ideology score could be the increased polarization of the Supreme Court nomination process, and the increased attention to judicial ideology in the process. I believe there has been more attention paid to her judicial ideology because more folks on the Right have accepted Senator Charles Schumer's invitation to explicitly consider a nominee's ideology in the confirmation process. As a consequence, it looks as if there will be more votes against Sotomayor than against any Democratic nominee since before World War II.

While I believe Sotomayor is a fairly liberal nominee -- and will be a more reliably liberal vote on most issues than many others expect -- I still do not oppose her confirmation. I remain one of those who believes the Senate should be relatively deferential to a President's judicial picks, focusing on qualifications, character, and temperament, rather than ideology. Thus, even if I believed Sotomayor was the "most liberal" nominee in decades -- and would, as a consequence, be the most "liberal" justice in a generation -- my position would be the same.

Angus:
Just saw that McCain is voting against her. Not a surprise given that he'd want a taste of personal revenge for last November.
8.3.2009 6:21pm
/:
This attempt to pigeon-hole the Honorable Sotomayer is disheartening. When can we move beyond labels like "liberal" and focus on the progress this nomination embodies?
8.3.2009 6:24pm
ruuffles (mail) (www):

The "Most-Liberal" Nominee in Decades?

The last democratic nominee was Breyer in 1994, 15 years ago. So yes, she is the most liberal by default.
8.3.2009 6:30pm
Steve P. (mail):
Is "temperament" like "empathy"?
8.3.2009 6:36pm
Steve H (mail):
Wow, she's only the third Democratic nominee to the Court over the past 40 years?

I guess that's what happens when you lose three out of ten elections.
8.3.2009 6:42pm
Steve H (mail):
Or, win only three out of ten elections. Sheesh.
8.3.2009 6:43pm
Soronel Haetir (mail):
Using newspaper coverage for this sort of ranking seems like a very strange exercise right from the outset.
8.3.2009 6:44pm
Blar (mail) (www):
Here are their ratings of the current court, from conservative (0) to liberal (1):

.000 Scalia
.100 Alito
.120 Roberts
.160 Thomas
.250 Stevens
.325 Souter
.365 Kennedy
.475 Breyer
.680 Ginsburg

Sotomayor's .79 would rank as the most liberal on the court, but only the 5th most 'ideological', as 4 conservatives have more extreme scores (farther from the midpoint).

Here are the Qualifications Scores:

1.00 Scalia
1.00 Ginsburg
.970 Roberts
.960 Stevens
.890 Kennedy
.810 Alito
.765 Souter
.545 Breyer
.415 Thomas

Sotomayor's .80 would put her right behind Alito.
8.3.2009 6:45pm
krs:
so many weird things about this post.

1. "Segal-Cover rankings evaluate the perceived ideology of judicial nominees by examining how newspaper editorials evaluate their qualifications and ideology." This seems like an especially useless data set.

2. "Now recall that there have only been two Democratic nominees since President Johnson nominated Thurgood Marshall in 1967 -- Stephen Breyer and Ruth Bader Ginsburg." Given that all of the Republican nominees were thought to be relatively conservative at the time they were nominated, doesn't this pretty much reduce to a non-story? I.e., using a not-very-useful dataset, some people have determined that Judge Sotomayor is more liberal than Ginsburg and Breyer were thought to be at the time they were nominated.

3. "While I believe Sotomayor is a fairly liberal nominee -- and will be a more reliably liberal vote on most issues than many others expect -- I still do not oppose her confirmation." Good to know that JHA isn't planning to withhold blogger consent. This announcement will make it much harder to execute that blogger filibuster that was in the works.
8.3.2009 6:46pm
Dave N (mail):
Judge Sotomayor is not my "cup of tea" and if I were the the President she would not be my choice.

That said, there has been nothing disqualifying that has come out about her IMHO, and if I were a United States Senator, I would vote for her confirmation--not that the Democrats don't deserve some payback for their politicization of the judiciary, particularly when then Senator Obama voted against the confirmations of both Chief Justice Roberts and Justice Alito.

However, I believe that elections do have consequences and the President, whether Democrat or Republican, should have great latitude over who he or she appoints.

Overall, this is just silly. I think she may be the most liberal nominee since Ruth Bader Ginsburg, though I predict that on certain criminal justice issues she, like Justice Breyer, will often vote with the more conservative bloc. But most liberal nominee since Thurgood Marshall? Hardly.
8.3.2009 6:50pm
Crunchy Frog:

I remain one of those who believes the Senate should be relatively deferential to a President's judicial picks...

Why? I can see giving the President what he wants for Executive Branch appointments, but for a co-equal branch of government? The one that has the final word on all legislation? The real world version of Orwell's 'more equal pig'? Not a chance.

Are you also in favor of unilateral disarmament?

The Constitution calls for the advice and consent of the Senate. It is up to the individual Senators (and the body as a whole) to determine which criteria to use in granting their consent. If they don't like SS's politics, they don't have to grant consent. If they don't like the color of her shoes, they don't have to grant consent. Hell, if they're prejudiced agains Wise Latinas, they don't have to grant consent. It may not be moral, but it is Constitutional. The only people they have to answer to is the voters of their respective states. They would do well to remember that.
8.3.2009 7:04pm
Donald (mail) (www):
Isn't there a huge methodological difficulty in assuming that the composition and ideology of newspaper editorial boards has been static over the last forty years?

Given that the country has arguably moved to the right over the past four decades, isn't it reasonable to assume that most newspapers have, too? So Sotomayor is perceived by newspapers as quite liberal now, but had a nominee with the same ideology been discussed in the 1960's or early '70's, she would have been perceived as relatively less liberal.

All in all, it seems off to create what purports to be a static measure that utilizes a dynamic measuring stick....
8.3.2009 7:05pm
Richard Riley (mail):
I wonder about Sotomayor's "liberalism." On criminal law, for example, she seems pretty cop-friendly. I don't favor judicial liberalism myself, and I would vote for Sotomayor. I'm not sure she is going to end up making liberals happy. She strikes me as a pretty tough cookie with little patience for goo-goo liberalism. Guess we'll see.
8.3.2009 7:16pm
Seattle Law Student (mail):

Given that the country has arguably moved to the right over the past four decades, isn't it reasonable to assume that most newspapers have, too? So Sotomayor is perceived by newspapers as quite liberal now, but had a nominee with the same ideology been discussed in the 1960's or early '70's, she would have been perceived as relatively less liberal.


I'm not sure I agree with the notion that the country has moved to the right. Looking at the changes in the way women, gays &co, and minorities are treated it would seem that the country has taken steps to the left, not the right over the last 40 years. Perhaps economically speaking the country has moved to the right, but certainly not socially/culturally.
8.3.2009 7:17pm
govols:
Segal-Cover scores are useful to political scientists for one important reason: they are independent from case rulings, and thus can be used in a model where the dependent variable is the direction of a Supreme Court decision. Otherwise, you use votes to predict votes, which creates some problems. Aside from that, however, they have some serious flaws--such as drift, or as Segal concedes in the article, being overly focused on one case such as Ricci, etc. I wouldn't use them in an ideal world...except no one has developed anything truly superior.

Another way of looking at a nominee's ideology takes measurements from their appellate career. The foremost method, Judicial Common Spaces, take into account the DW-NOMINATE score of the appointing president, while accounting for senatorial courtesy (see more here). Long story short, of the appellate judges who were appointed between 1953 and 2006, Sotomayor is the 109th most liberal judge (out of 498). By contrast, Breyer is the 40th most liberal appellate judge in the data, while Ginsberg is the 18th most liberal.

None of these measurements are that great, obviously, although they do have predictive power (in one case, better than a group of law professors). In any case, with only three justices appointed by Democratic presidents in 40 years, the label "most liberal" doesn't have that much meaning, regardless of which measurement is used.
8.3.2009 7:29pm
MikeS (mail):
Segal-Cover rankings evaluate the perceived ideology of judicial nominees by examining how newspaper editorials evaluate their qualifications and ideology.

Why not use something scientific, like birth sign?
8.3.2009 7:57pm
A. Zarkov (mail):
Sandra Day O'Connor gets a qualifications score= 1? What?
8.3.2009 8:04pm
Bruce Hayden (mail):
I do question a ranking that would rank Justice Breyer right of center, and Justice Stevens as verging on being a conservative zealot. Unless the ranking is somehow logarithmic, I would suggest that it is heavily biased.

That said, I am a bit surprised that Judge Sotomayor is ranked to the left of Justice Ginsburg. I would have put Ginsburg to the left of Sotomayor.

In any case, as some wag in the Obama Administration pointed out, they won, and this is the results. We have survived far worse.
8.3.2009 8:25pm
SFH:
I'm a little surprised Thurgood Marshall and John Roberts didn't get a 1.000 for qualifications.
8.3.2009 8:44pm
ArthurKirkland:
Perhaps the "right" has changed. Were anti-civil liberties, anti-abortion, anti-science, big-government, censorial homophobes always strongly influential among conservatives and Republicans? That strikes me as a relatively recent phenomenon.

I find it hard to believe Scalia merits a .000. That evokes a reflexive, uniform zealot. Scalia strays from the hard-right extreme periodically, so "uniform" seems inapplicable. A .000 figure suggests a flawed method.

With respect to "unilateral disarmament," Republicans have had overwhelming majorities on the Court for many years, consequently largely to happenstance rather than overwhelming voter preference for conservatives or Republicans. If adding Sotomayor to the Court creates consternation among Republicans, the Court's evolution under the Obama adminstration could generate spasms and conniptions.

We have survived a Court slanted 7 of 9 toward Republicans. We have survived Johnson, Nixon, Carter, Reagan, Clinton and the lesser Bush. I am confident we would survive, and likely even prosper with, a Supreme Court more accurately reflective of the views of the American citizenry.
8.3.2009 8:52pm
ChrisTS (mail):
Thank you, AK.
8.3.2009 9:00pm
Soronel Haetir (mail):
I also find the score differential between Scalia and Thomas puzzling. Especially putting Roberts and Alito between them.

From what I've seen if either Scalia or Thomas is in disagreement with Roberts or Alito, the other is also likely to disagree.

Given that 1.00 were gven for qualification scores, what would someone have to do to get a 1.00 on the liberal score? Rule that cannibalism is a protected religious freedom?
8.3.2009 9:26pm
TRE:
Do you think any other nominee would have said there was no right to self defense?
8.3.2009 9:50pm
Displaced Midwesterner:

Or, win only three out of ten elections.

I believe Democracts have won four of the last ten elections (Obama, Bush, Bush, Clinton, Clinton, Bush, Reagan, Reagan, Carter, Nixon).
8.3.2009 9:55pm
TalkingHead:
I believe S-C scores are good for forecasting votes on only "civil rights" issues (however operationalized) but say nothing about any other type of case.
8.3.2009 10:05pm
JK:
As a (former) Vermonter who lived through both John Kerry and Barack Obama being labeled the "most liberal senators," I'm pretty skeptical of the "most liberal" label. Kerry More liberal than Leahy or Kennedy? Obama more liberal than Bernie "Democratic Socialist" Sanders?

The problem with any of these "more liberal"/"more conservative" labels is that there's no set definition of what liberal or conservative judgments are exactly, so you can move the goal posts all around without leaving the realm of reasonable credibility. It makes it terribly easy to cast anyone who is solidly in one camp or the other as "the most extreme."

The other "spin" (i.e. kind of deceptive) thing about this statement is, as others have pointed out, that it's just a dramatic way of saying she's more liberal than Breyer or Ginsburg were at the time of confirmation.
8.3.2009 10:34pm
Alexia:

I remain one of those who believes the Senate should be relatively deferential to a President's judicial picks, focusing on qualifications, character, and temperament, rather than ideology.


Yeah, me too, except that the Constitution doesn't list any qualifications, so I'm actually ok with the President appointing just about anybody he wants to unless there's some illegal quid-pro-quo arrangement.
8.3.2009 10:35pm
Psalm91 (mail):
"Do you think any other nominee would have said there was no right to self defense?"

Only those who follow precedent, whether you like it or not. Another vote for an activist from the right.
8.3.2009 10:42pm
SFH:

Soronel Haetir (mail):

Given that 1.00 were gven for qualification scores, what would someone have to do to get a 1.00 on the liberal score? Rule that cannibalism is a protected religious freedom?


There are several people listed who hit 1.000 on the liberal scale: Brennan, Thurgood Marshall and Abe Fortas are the most recent. So you'd need the reincarnation of one of them.
8.3.2009 11:38pm
TRE:
Psalm what precedent suggests to you that you would not have a right to self defense if I were to attack you?
8.4.2009 12:45am
Ohgoodgrief (mail):
As a criminal profiler, I learned to read folk's "body language", word choice, inflection, eye movement, etc, much like a professional gambler. I watched Judge Sotomayor's testimony to assess her veracity.

My assessment is she not only awkwardly avoided answering some of the more pointed questions but she was manifestly disingenuous in some of the questions she could not avoid.

Assuming my observations are accurate does this not make her a rather poor choice for a seat on the Supreme Court?
8.4.2009 1:08am
Leo Marvin (mail):
Displaced Midwesterner:

Or, win only three out of ten elections.

I believe Democracts have won four of the last ten elections (Obama, Bush, Bush, Clinton, Clinton, Bush, Reagan, Reagan, Carter, Nixon).

He probably meant American Democrats. ;)
8.4.2009 3:30am
gerbilsbite:
I believe Rutledge and Ellsworth at the Constitutional Convention favored the idea of having the Senate nominate Justices and letting the President have a veto power. Sometimes I wonder if that wouldn't have been a better system,
8.4.2009 3:48am
Brett Bellmore:
Deference to the executive is for monarchies. The only thing the Senate owes the President on his nominations is a vote.

That said, this is a silly argument. Barring some rather unlikely revelation, she's going to be confirmed, because there aren't enough Senators who'd WANT to oppose the most liberal nominee in decades, even assuming she is that.
8.4.2009 7:19am
Floridan:
"As a criminal profiler . . ."

Trying to figure out who the criminal is before the detectives on Law &Order doesn't count.
8.4.2009 7:59am
MarkField (mail):

Psalm what precedent suggests to you that you would not have a right to self defense if I were to attack you?


What text in the Constitution recognizes such a right?
8.4.2009 9:56am
CJColucci:
Much ado about next to nothing. Judge Sotomayor is squarely within the actual, existing mainstream of people who are plausible candidates for a Supreme Court appointment. Being only the third Democratic appointee in over 40 years, it would be no surprise, if it is even true, that she would be the "most liberal nominee in decades." Being, at most, slightly more liberal than Ruth Bader Ginsburg (and I wouldn't bet on that) is not like being the liberal counterpart to Justice Scalia.
8.4.2009 10:11am
Jay Schweikert (mail):
I'm skeptical of the value of labels like "conservative" and "liberal" in American politics generally, which means that I'm incredibly skeptical of those labels with regard to judges. I guess there's some meaning to the idea of a "judicial conservative," who feels bound by the text of laws and the original meaning of the Constitution, and, correspondingly, a "judicial liberal," who is more comfortable relying on purpose, policy consequences, and an "evolving" understanding of the Constitution. But even with these concepts, which probably do have some coherence, there are at least two problems.

First, I definitely do not trust newspaper editorials to have a nuanced enough understanding of jurisprudence to evaluate judges in any meaningful non-political way. But second, and more importantly, there's so much more to judicial philosophy than even those conceptions of conservative and liberal mentioned above. For instance, for "conservatives," does judicial objectivity mean that laws are entitled to a presumption of constitutionality, or are citizens entitled to a presumption of liberty -- i.e. do the Ninth and Tenth Amendments mean what they say?

I definitely respect the idea that we shouldn't vote for or against judges just because they are "liberal" or "conservative." I think the larger point, however, should be to acknowledge that the political process, in this regard as in so many others, is missing the point entirely.
8.4.2009 10:12am
Alexia:

What text in the Constitution recognizes such a right?


The 9th.
8.4.2009 10:16am
Soronel Haetir (mail):
Also, I would think the metric of newspaper editorials would be highly dependant on the political climate of the day. I wasn't really old enough to pay attention to Ginsburg's confirmation, but given her history I have a hard time believing that she would have been percieved as less liberal than Sotomayor.

I would almost chaulk this sort of ranking down to changes in media, plus the ratcheting of SCOTUS confirmation fights. Simply the fact that Ginsburg sailed through with little controversy from what I can tell likely reduces her score by this metric.
8.4.2009 10:35am
Steve H (mail):
Not three of the last ten, but three of the ten elections after 1967. Nixon, Nixon, Carter, Reagan, Reagan, Bush, Clinton, Clinton, Bush*, Bush.
8.4.2009 11:50am
Soronel Haetir (mail):
Steve H,

Ummm, what about Obama? His election was after the cut off date :)
8.4.2009 12:02pm
yankee (mail):
How is this at all interesting? Segal-Cover only measures how nominees are perceived. It does not measure nominees' actual ideology or predict how they would rule. Nor does it purport to: the linked blog post says Segal "cautioned that these scores only measure perceptions of nominees and don't predict how they would rule on the high court."

So all this tells us is that Sotamayor is perceived as more liberal than Ginsburg and Breyer were perceived as when they were nominated.
8.4.2009 12:15pm
eyesay:
I believe that an honest count of the vote in 2000, including those whose intent was not to vote for Pat Buchanan on an illegal butterfly ballot, and thousands of mostly Black voters illegally stripped from the voter rolls by the Florida Secretary of State cum Bush campaign chairman (conflict of interest, anyone?) and many ballots rejected by the machines and not counted even once, plus illegal police roadblocks ... would show that the Democratic candidate won the presidency in 2000, and if he had been allowed to serve, would have been reelected in 2004. But here at this conspiracy, everyone's mind is closed to the truth.
8.4.2009 12:36pm
Wahoowa:
Using newspaper editorials to measure qualifications is ridiculous, especially when you look at justices who were nominated twice. Abe Fortas gets a 1.000 when nominated the first time, but he comes up for CJ and suddenly that drops to .635? Same thing for Rehnquist (.885 to .400). Maybe Fortas is explained by his clearly non-judicial behavior while on the bench, but you're telling me Rehnquist spends 15 years as an associate justice and is somehow HALF as qualified when he's re-nominated? WTF?!

It's also pretty ridiculous that O'Connor--who had 4 years as a state trial court judge and then about 2 years on a state's intermediate appellate court--somehow gets a 1.000 but Sotomayor--5 years Fed. district &nearly 11 on the 2d Cir--only gets .800.

Obviously, complaints about "qualification" is a cover for ideological opposition quite frequently.
8.4.2009 12:43pm
24AheadDotCom (mail) (www):
What Adler and the rest here don't understand is that this group will now have a friend on the SC, and that's not good for the U.S. Perhaps they should have, you know, done some research before supporting her or not opposing her effectively.
8.4.2009 12:50pm
MarkField (mail):

The 9th.


Your copy must be a tad different than the one everyone else uses.
8.4.2009 12:53pm
Ridolph (mail):
Does anyone find it odd that Conservative = 0 and Liberal = 1 on their scale? Subtle...
8.4.2009 12:59pm
luagha:
The common-law right to self-defense is recognized in the Declaration of Independence, one of the four founding documents of the nation.

As many have said, the Constitution is a list of negative rights - it grants nothing. It puts limitations on the government. Given that, the 2nd amendment clearly includes the right to self-defense, as it stipulates the ability for all to own and carry weapons appropriate to the defense of themselves and others.

Since the right to self-defense is not particularly stated as you mention, it is possible for it to be rationally circumscribed. For example, you may not have the right to preemptively attack the associates of someone who has attacked you, even though you know they are members of the same gang. You may not have the right to physically defend yourself against the police when they inform you of a lawful order.
8.4.2009 1:17pm
Steve H (mail):

Ummm, what about Obama? His election was after the cut off date.


What about Obama? His election came *after* the Dems went through a stretch of losing 7 of 10, which led to the Dems nominating only 2 justices to the Court in 40+ years.

(Of course, if you want to turn it around, you could say that the American people have chosen the Dem candidate over the Republican in four of the last five presidential elections.)

Maybe the Supreme Court historians can answer this, but has there been any previous eras where one party was so shut out of the Supreme Court nominating business?
8.4.2009 1:28pm
Angus:
What Adler and the rest here don't understand is that this group will now have a friend on the SC, and that's not good for the U.S.
Because civil rights organizations are bad for America?
8.4.2009 2:16pm
24AheadDotCom (mail) (www):
Angus has a problem, and he needs your help. Angus can't read what's at links. Will you help? Help Angus understand that that group, while they call themselves a "civil rights group", among other things they constantly support massive illegal activity and they even gave an award to someone who'd proposed genocide.

And, right on their site, that "civil rights group" is promoting groups like this:

lideres.nclr.org/content/groups/detail/2308

Now, that "civil rights group" will have a friend on the SC. And, the people at this site and almost all other leaders of the supposed Obama opposition helped or did nothing.
8.4.2009 2:28pm
MarkField (mail):

The common-law right to self-defense is recognized in the Declaration of Independence, one of the four founding documents of the nation.

As many have said, the Constitution is a list of negative rights - it grants nothing. It puts limitations on the government. Given that, the 2nd amendment clearly includes the right to self-defense, as it stipulates the ability for all to own and carry weapons appropriate to the defense of themselves and others.


You could have saved a lot of words if you had just said "It's in the penumbra".
8.4.2009 3:48pm
ChrisTS (mail):
MarkField:

Your copy must be a tad different than the one everyone else uses.

Dear Mark,

Have I mentioned {recently] that I adore you?* (I really miss comments on JB.)

* This is not to detract in any way from prior enunciations of Arthur Kirkland [et selected alia] as a god among men.]
8.5.2009 12:37am

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