Interparty Judicial Appointments

• Published date: 01 December 2015
• DOI: http://doi.org/10.1111/jels.12088
• Date: 01 December 2015
• Author: Jonathan Remy Nash

Interparty Judicial Appointments

Jonathan Remy Nash*

Empirical studies of judges’ ideological voting call for a theory according to which the ideology

of the judges can be measured. This article calls into question the assumption that undergirds

the measure that currently dominates the legal, economic, and political science literature---the

assumption that the ideology of a lower federal court judge is largely predicted by the

ideologies of the nominating president and the relevant state’s senators who are of the same

political party as the president. The article relies on a natural experiment to examine this

question empirically. Between 1977 and 1998, New York was represented in the Senate by one

Democrat and one Republican who had an agreement to divide appointments to the district

courts in the state: the senator who shared party affiliation with the president would be

allocated three of every four appointments, while the “out-of-party” senator would b e allocated

the rest. The article employs a novel data set---consisting of all federal district judges appointed

to the federal bench in New York during the time period in question, and the senator who

recommended each nominee to the nominating president. If the dominant theory---that the

party of the recommending senator affects judicial decision making---holds, then one would

expectthetheory’sexplanatorypowertobeatitsapexwheresenatorsofdifferentparties

recommendjudgesatthesametimetothesamepresident.Yet, using median prison sentence

length as a proxy for ideology in decision making, the empirical analysis finds no evidence that

senatorial ideology has a statistically significant effect on district judge decision making. At the

same time, it finds that, indeed, the nominating president’s ideology does have a statistically

significant effect. The findings are instead consistent with the minority view of lower federal

court judges’ ideological leanings---that a lower federal court judge’s ideology is in large part a

function solely of the nominating president’s ideology.

I. Introduction

Empirical studies of judges’ ideological voting call for a theory according to which the

ideology of the judges can be measured. This article calls into question the assumption

*Professor of Law and David J. Bederman Research Professor (2014–2015), Emory University School of Law, 1301

Clifton Rd. NE, Atlanta, GA 30322; email: jnash4@emory.edu.

I am most grateful to Senator Alphonse D’Amato for taking the time to allow me to interview him. I owe

thanks to Leeann Bass, Kyle Beardsley, Jameson Bilsborrow, Justin Esarey, Joshua Fischman, Myriam Gilles, Ken-

neth Gross, Michael Herz, Raymond Jasen, Sean King, Lori Nash, Jennifer Nassour, Rafael Pardo, Richard Revesz,

Dana Sanneman, David Schwartz, John Sivolella, Jeffrey Staton, and two anonymous reviewers for their very help-

ful contributions. I have benefited from comments received at presentations at the Conference on Empirical

Legal Studies (especially the comments of Miranda Yaver, who served as commenter on the article) and at the

Law & Economics Workshop at Notre Dame Law School; and from comments received at presentations at the

annual meetings of the American Law and Economics Association, the Canadian Law and Economics Association,

and the Midwest Political Science Association (especially the comments of Rebecca Gill, who served as com-

menter on the article).

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Journal of Empirical Legal Studies

Volume 12, Issue 4, 664–685, December 2015

that undergirds the measure that currently dominates the legal, economic, and political

science literature.

The reigning view in the academic literature is that the ideology of a lower federal

court judge is largely predicted by the ideologies of the nominating president and the

relevant state’s senators who are of the same political party as the president.

1

This view

finds support in what is assumed to be the practice of arriving at federal judicial nomi-

nees: the president makes the nomination, but determines the identity of the nominee

only after having consulted with the senator, or senators, of the same party from the

state in which the judge will sit. (If there is no such senator, then the president is free

to nominate whom he pleases.)

At the same time, a competing literature questions the dominant approach and

its theoretical underpinnings.

2

This literature advances instead the nominating presi-

dent’s ideology alone as the better predictor of a lower federal court judge’s ideological

leaning. Commentators argue that, especially in recent years, the White House has

exerted greater control over the selection of lower federal court judges. Moreover, what-

ever recommendations arrive at his desk, it is the president who decides whether or not

to put a name in nomination. Thus, it is reasonable to expect a judge would have pref-

erences not far from the president who nominated him or her.

1

What is now frequently referred to as the “judicial common space score” was developed by Micheal Giles, Vir-

ginia Hettinger, and Todd Peppers. It derives a judge’s ideology from the ideology of the nominating president

and of senator(s) from the judge’s state who share the same party affiliation as the president. See Micheal W.

Giles, Virginia A. Hettinger & Todd C. Peppers, Measuring the Preferences of Federal Judges: Alternatives to

Party of the Appointing President (unpublished manuscript 2002) [hereinafter “Giles et al., Measuring the Pref-

erences”]; Micheal W. Giles, Virginia Hettinger & Todd Peppers, Picking Federal Judges: A Note on Policy and

Partisan Selection Agendas, 54 Pol. Res. Q. 623, 627--31 (2001) [hereinafter “Giles et al., Picking Federal

Judges”]. The judicial common space score is now the dominant measure for lower federal court judge ideology

in legal and political science literature. See, e.g., Frank B. Cross, Decision Making in the U.S. Courts of Appeals

19 (2007) (referring to the measure developed by Giles et al. as “the best currently available measure for circuit

judicial ideology); Lee Epstein, Andrew D. Martin, Jeffrey A. Segal & Chad Westerland, The Judicial Common

Space, 23 J.L. Econ. & Org. 303, 306 (2007) (describing the method of Giles et al. for determining ideology as

“the state-of-the-art measure for the preferences of US Court of Appeals judges (and, for that matter, federal dis-

trict court judges)”); Jonathan Remy Nash & Rafael I. Pardo, Rethinking the Principal-Agent Theory of Judging,

99 Iowa L. Rev. 331, 351 (2013) (relying on the judicial common space score for empirical analysis); see also

Joshua B. Fischman & David S. Law, What is Judicial Ideology, and How Should We Measure It? 29 Wash. U. J.L.

& Pol’y 133, 173 (2009) (while ultimately questioning the value of the score, noting that “scholars have expressed

enthusiasm for [the] ‘common space score’”).

2

See Susan W. Johnson & Donald R. Songer, The Influence of Presidential Versus Home State Senatorial Prefer-

ences on the Policy Output of Judges on the United States District Courts, 36 Law & Soc’y Rev. 657, 671--73

(finding that district court judges reflected in their decision making more of the ideology of the presidents who

nominated them, rather than that of their home state senators); Donald R. Songer & Martha Humphries Ginn,

Assessing the Impact of Presidential and Home State Influences on Judicial Decisionmaking in the United States

Courts of Appeals, 55 Pol. Res. Q. 299, 321--22 (2002) (same for court of appeals judges); Lee Epstein, William

M. Landes & Richard A. Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational

Choice 174 (2013) (examining empirical evidence on the relationship between judges appointed by a president,

and senators from that state at the time of nomination from the same party as the president, and finding that a

“Senator’s ideology doesn’t seem to affect how the judge votes in cases”); Fischman & Law, supr a note 1, at 200--

04 (relying on empirical data drawn from asylum cases to conclude that including the ideology of senators pro-

vides only a modest improvement over simply relying on the ideology of the appointing president).

665Interparty Judicial Appointments