Imagine their surprise...
Two years ago, with Democrats filibustering several of President Bush's judicial nominees and expectations rising that multiple Supreme Court vacancies would open soon, two law professors decided to study a "set of simple objective measures to evaluate judicial merit." To do so, Professor Stephen Choi at U.C. Berkeley and Professor Mitu Gualti at Georgetown decided they would compare all federal appellate judges under the age of 65, "placing [them] in a tournament of sorts" by comparing statistics measuring their individual productivity, quality, and independence. In other words, the professors "ranked" all the federal appellate judges under 65 by counting the number of opinions each produced, the number of times each was cited, and number of times each disagreed with his or her judicial colleagues.
The professors did not have high expectations for the five judges who were frequently mentioned as President Bush's "short listers" for seats on the Supreme Court. In fact, the law professors bluntly stated their "expectation ... that the Bush Five" — Judges Samuel Alito, Emilio Garza, Edith Jones, J. Michael Luttig and J. Harvie Wilkinson —"would fare abysmally in the tournament (given [the law professors'] perception of ideological focus of the current administration)." In other words, the law professors believed that the President's preferred jurists were just what liberal special interests and Democrats in the Senate said they were — right-wing ideologues incapable of independent judicial decision-making. As the professors wrote, "As best we can tell, the entire focus in analyzing a candidate's qualifications is in predicting [his or] her expected votes on a handful of issues."
In the end, the professors had to admit their preconceived notions and initial guesses were flat wrong. As they acknowledged just before concluding their paper: "Surprisingly, those in the Bush Five did well." In fact, so well the professors had to explain that their fact-based study found that Judges "Wilkinson and Luttig emerge[d] as among the top performers" overall. And, even "[m]ore surprising" was "that three of the Bush Five (Luttig, Alito, and Jones) ha[d] among the highest scores on the independence measure" — precisely what the liberal special interests and Democrats in the Senate accused those judges of lacking.
Could it be that President Bush and his proponents had been right — or, should we say, correct — all along? Could it be that the President really was appointing "the best and the brightest" to the federal bench, just as he had promised?
The answer was a resounding "yes," according to the law professors and their study. Indeed, among the top 10 judges in the ranking — in which the judges were compared with equal weight given to judicial productivity, quality, and independence — all but one (Judge Diane Wood) were appointed by Republican presidents. On the other hand, six of the bottom 10 judges were appointed by Democrat presidents. Even more interesting was the judicial independence ranking, in which the two most frequently touted and harshly maligned Supreme Court candidates — namely, Judges Luttig and Alito — placed third and fourth, respectively, dispelling the political Left's charge that they are nothing more than "reactionaries in robes."
There is an obvious reason why Republican- appointed and hence more "conservative" judges fared so well in the law professors' study. Taking the limited role of judges as well as constitutional and statutory text relatively more seriously than their Democrat-appointed and, hence, more liberal colleagues, conservative judges are more likely to decide cases based on the law rather than their own personal political, economic, or social agenda.
Of course, the law professors did not deign to draw this conclusion from their data. Their goal was to determine whether President Bush's preferred Supreme Court nominees were actually qualified. And prove it they did. There can be no question now that Judge Alito and those he competed against are provably qualified for lifetime seats on the highest court in the land.
What will the liberal argument be next?December 1, 2005
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