Do sitting federal appellate judges who seek elevation to the Supreme Court modify their behavior to enhance their odds of getting the nomination?

This is a question asked in a recent article n the American Journal of Political Science.

The answer - according to the authors - is yes.

- Click here for detail from ScotusBlog:

We examined the voting behavior of “contender judges” and “non-contender judges.” We defined contender judges as sitting federal appellate judges who have strong reason to believe that the president is considering them for elevation. To identify these judges, we looked to the president’s “short lists.” These are lists (formal or otherwise) presidents keep and maintain to identify potential nominees to the Supreme Court should a vacancy arise. These judges may or may not know they are on the short list, but they certainly have strong reason to suspect they are under consideration. Non-contender judges are federal appellate judges who never made a president’s short list.

Our analysis benefited from the fact that the strong norm these days is to nominate Justices who come from a federal court of appeals. Indeed since 1937, nearly half of all Supreme Court nominees were sitting appeals court judges at the time. Since the Reagan presidency, seventy-three percent of all nominees were sitting federal appeals court judges. Knowing this, federal appellate judges have considerable reason to believe they might be under consideration. And, assuming they want the job, there is every reason to believe they will do what they can to be elevated.

We compared the voting behavior of contender judges (a) when there was a vacancy on the Supreme Court versus (b) when there was no vacancy on the Court. Our belief was that if these judges “court” the president and try to signal to him, they should vote differently in vacancy periods (the time between an announced departure on the Court and when the seat is filled) than in non-vacancy periods. (Our results are robust to other windows of time as well.) During vacancies, they should be more likely to vote in line with the president’s ideological position, more likely to vote for the United States as a party, and more likely to write dissenting opinions. They do precisely that. What is more, we observe none of this behavior from non-contender judges.

Consider whether the judge votes in line with the president’s ideological position. Using a matching analysis, we find that contender judges are more likely to vote in line with the president’s ideological position during vacancy periods than during non-vacancy periods. For example, a contender judge during a non-vacancy period has a forty-two-percent predicted probability of voting to support the president’s ideological position, but a fifty-one-percent predicted probability of doing so during a vacancy period. What is important to note here, again, is that these are judges who already made the president’s short list. That they go into “hyper-ideological” mode during vacancies only underscores our point that they are wooing the president.

The data also show that contender judges are more likely to vote in favor of the United States during vacancy periods than they are during non-vacancy periods. A contender judge during a non-vacancy period has a twenty-seven-percent predicted probability of voting in favor of the United States, but a fifty-four-percent predicted probability of doing so during a vacancy period. These judges do so to establish their “team credentials” and bolster their odds of elevation.

From the Observer: From autocracy to democracy, to ‘mobocracy’

Some of the terms we've come to grips with in this class are all over this recent piece of commentary.

The author analyzes the results of recent revolutions in Egypt, Libya, Ukraine and Thailand and wonders if what had been a from autocracy to democracy is now becoming a shift from democracy to "mobocracy."

The ideals of democracy - where the people rule in a manner which benefits the general public - are often thwarted by the practical realities of how people in fact behave. Groups define their well being in terms of whatever groups they identify with and do whatever is necessary to obtain those benefits.

A well constructed constitution is meant to minimize the ability of a faction to undermine a democratic republic in large measure by establishing institutions that contain their actions, but the democratic masses in these nations see little reason to uphold those institutions - assuming that they even exist.

As the factors that existed to prevent democracy from slipping into mobocracy disappear, instability increases in each nation.

. . . while these ‘mobocrats’ tear down civilisations of centuries, they have no mechanism, means or ways to manage democracy, and propel themselves into peace, unity, security and prosperity.

To that effect, Libya after Col Gaddafi is neither a democracy nor an autocracy. National oil wells are being scrambled for by tribal militias and diplomats. In neighbouring Egypt, the former ‘democratic’ masses and their governors have now been labelled ‘terrorists’, as they continue to destroy what may need a new martial plan to reconstruct.

In Ukraine, the masses started off somewhat civilized, but sooner degenerated into destructive mobs against their “commonwealth”, as they demanded to belong to their maternal Europe, while the governors preferred to remain with their paternal Russia.

In Thailand, the masses demanded the stepping down of their elected lady prime minister. When she called for elections, to give them an opportunity to elect whoever they thought was a better choice, they did not want them.

These are the mobs and masses.

He is also critical of the leadership in other nations that have seen changes in their governing systems where elites have taken charge - Iraq, Juba, and Lebanon among them. In these cases democracy cannot take hold since no institutions exist to restrain the ambitions of the leadership (Egypt fits here as well).

This supports the argument we make in class that while it is true that democracies are difficult systems to establish, they are even more difficult to maintain. It was a chief concern of the Constitution's framers, and one of the points the authors of the Federalist Papers tried to make - that the Constitutional system they were able to develop would be able to restrain both the elites and the masses.  

A Hungarian Tyranny?

We've discussed separated powers in some of our introductory lecture and mentioned that a major concern of the framers of the constitution was that these separated powers would become concentrated, generally at the hands of an ambitious office holder. The internal design of each institution is, according to Madison, designed to ensure that the ambitions in one institution would be checked by those in another.

Apparently Hungary lacks such a design. The current government has embarked on a series of institutional changes that grant it control over all governing institutions, in addition to the media. Critics see this as a step towards autocratic rule.