How President Barack Obama and the Senate will respond to the vacancy left by the passing of Justice Antonin Scalia has attracted considerable commentary, including from the president himself and from at least two Senators. But what about judges who might like a promotion? How will they respond to and act during the current vacancy?
It’s a less addressed question, but one with potentially significant consequences for federal law. Ryan Black and Ryan Owens provide clues for a possible answer in a recent article in the American Journal of Political Science, “Courting the President: How Circuit Judges Alter Their Behavior for Promotion to the Supreme Court.” Their study is focused on judges on the courts of appeals, whereas the president is not so limited in his selection of a nominee, but SCOTUSblog’s Tom Goldstein suggests there is good reason to believe that the nominee will be a federal appellate judge.
Black and Owens find that sixty-eight “contender” judges on the courts of appeals, who were on presidents’ “short lists” for vacancies spanning from Chief Justice Harlan Stone’s retirement in 1946 through Justice Elena Kagan’s confirmation in 2010, exhibited three significant effects differentiating their decisions in cases released within periods of Supreme Court vacancies from decisions in similar, matched cases decided during periods without vacancies.
Black and Owens first find a twenty-one percent increase in the likelihood of a contender judge ruling in keeping with the president’s general preferences when a vacancy exists, presumably (the authors suggest) to “signal to the president their worthiness for elevation.” As Black and Owens specify, this increase is particularly dramatic because contending judges already made the president’s “short list,” meaning they were most likely previously ruling in line with the president’s interests.
Black and Owens next find a fifty percent increase in the likelihood of a contender judge ruling in favor of the United States when it’s a party to a case. They suggest the judges want to prove their “team credentials” to politicians. This effect occurs under Republican and Democratic administrations, and the authors cite evidence that “in many cases there is a clear position on behalf of the United States that presidents, regardless of party, seem to pursue.”
Lastly, Black and Owens find that contender judges “are more than twice as likely” to author a dissenting opinion during vacancies as outside them, even for similar cases. Previous scholarship has proposed two primary judicial goals: winning (i.e., “conservative or liberal position wins”) and speaking (i.e., “setting effective and favorable legal guidelines”). Black and Owens suggest that speaking becomes a more important goal during vacancies as the judge seeks “to set himself or herself apart from the majority and other possible contenders.”
The crux of the study’s method depends on their technique of “matching” cases, designed to ensure algorithmically that the presence of a vacancy on the Supreme Court – one that a judge might hope to fill – is indeed the crucial variable. For this comparison, Black and Owens utilize in a variety of fashions the concept of Judicial Common Space, which allocates to judges an individual JCS score estimating ideological preferences by referring to the ideological rigor of the nominating president and any advising home-state Senators. (When a judge retires from the courts of appeals, the seat is held for promotion for someone from the retiring judge’s state; the president takes advice from any of that state’s Senators in the same party.) The scholarly goal of the Judicial Common Space is to improve judicial statistical analysis by moving beyond a binary score – liberal or conservative – when comparing judges by instead placing them along a spectrum (although it has its limitations, as Corey Young briefly summarizes).
Black and Owens do not attempt a systematic review of what consequences these three effects may have had on legal policy, although circuit doctrines could have been altered as a result. They also caution that proposals for term limits on Supreme Court Justices, which would naturally increase vacancies and potentially introduce greater career-related influences on judges, may result in the instability of circuit doctrine as judges vie for promotion.
As quoted by Black and Owens, Judge Alex Kozinski from the Ninth Circuit expresses a tension many judges may be feeling during the present vacancy – although this post does not claim any necessarily are:
Every magistrate judge is a district judge in waiting; every district judge is a circuit judge in waiting; every circuit judge is an associate justice in waiting; and every associate justice is a chief justice in waiting. … How does a judge reconcile his personal ambitions with the requirements of principled application of the law and sensitivity to individual justice?