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Sunday, April 11, 2010

(Pre- and Post-) Confirmation Bias

A propos of the Stevens vacancy, Tuan Samahon has a fun post pointing out some earlier sky-is-falling predictions about Supreme Court nominees that didn't exactly come true.  Some commenters bash him for his logic, but I think his point is well-taken on the whole.

What needs to be added to it, I think, is a sense of both the function of pre-confirmation predictions of this kind and the current (I can't say whether it is actually new) tendency of interest-group advocates and members of political parties to maintain their earlier positions in the teeth of the evidence.  On the pre-confirmation side, of course, the goal of these groups is not to accurately predict whether a particular nominee will be a disaster: it's to frame the debate, and to stir up the kinds of passions that might sway a very small number of Senators, keep the rest of them in line, and of course contribute to fund-raising efforts.

Post-confirmation, what I find startling is the current tendency of many groups to stick with their characterizations rather than look afresh at new evidence.  I think both Roberts and Alito, for instance, are unmistakably "conservative" Justices, in the colloquial rather than the exact meaning of the term (whatever that might be).  But, even if one considers the precedents they have narrowed or overruled, I think it's hard to call them swashbuckling activists.  And yet, that's exactly what some critics have called them.  In truth, just about any Justice will end up arguing that some precedents should be narrowed or overruled, and that's especially likely to arise in cases that are what Richard Posner would call "political."  Yet in the case of Roberts and Alito, such instances have given rise to accusations that they were wolves hiding in sheep's clothing.  This accusation serves the function of both confirming those who earlier accused them of being nothing but conservative activists, and excusing those who voted for their confirmation or muted their opposition, who can now say that Roberts and Alito successfully hid their true intentions.  Neither description quite fits the reality, however.  Conversely, I have been struck by the language over at Bench Memos describing Breyer, Ginsburg, and Sotomayor not just as liberal Justices -- which is true in each case -- but far left activists, leftists, liberal activists, and so on.  If they are poster children for activism or leftism, those labels have outlived their usefulness; in any event, the evidence really isn't in yet on Sotomayor as a Supreme Court Justice.  

To continue my conversation with Rick, none of this precludes believing and stating that any of these Justices is wrong, in given cases or in their general approach.  But it does counsel a little tamping down of one's rhetoric, both before and after confirmation.       

Posted by Paul Horwitz on April 11, 2010 at 08:54 PM in Paul Horwitz | Permalink


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"But when the umpire consistently calls nothing but strikes on the same team, the suspicion may arise that the fix is in."

And the reason this is more true of Roberts than Ginsburg is . . .?

At least Scalia was willing to uphold free speech for flag-burners and abortion-protestors alike. But if abortion is involved, even speech isn't safe. And so it goes . . .

Posted by: cynic | Apr 13, 2010 5:05:18 PM

"Note that nothing in the first comment addresses whether this represents a change in Robert's views or not."

He's just an umpire, I know. But when the umpire consistently calls nothing but strikes on the same team, the suspicion may arise that the fix is in.

Posted by: Anonsters | Apr 12, 2010 5:02:53 PM

Paul, my point is that, from the baseline of "just calling balls and strikes," Roberts has strayed pretty far. Your point seems to be that he could have strayed even further, and only then should he be considered a "swashbuckling activist." But that is like saying we shouldn't call waterboarding torture because there are always thumbscrews and racking. There is always a more extreme point that we could imagine, and under that rubric we could twist the Warren court into a paragon of restraint.

Posted by: anon | Apr 12, 2010 12:34:22 PM

Some readers may agree with the first anonymous commenter. I think his or her statement is overstated, not least on the question of assuming a specific intent on Roberts's part to undermining the entire project of civil rights law in America. Readers are free to agree or disagree with me on this point. Note that nothing in the first comment addresses whether this represents a change in Robert's views or not.

I think the second two commenters raise similar points. To take the second one first, I do think my description of judges, whether you call them activist or non-activist, is about right. I could rephrase it, if you like, in different terms: judges are constrained by a host of cultural and institutional factors, both internal and external, so that talking about any particular Justice as if he or she represents a threat to the legal order, whether from the left or the right, risks obscuring the whole truth.

As for the balls and strikes metaphor, I think a number of things could be said about it. The first is that although I think the umpire metaphor is and always has been misleading, Roberts's record so far does not absolutely refute it. He has been more activist than the metaphor suggests, but that does not mean he thinks he was lying when he said it and has deliberately done more than that since. As for what various Senators and interest groups said about Roberts, that is my point. Some said he wouldn't "just" call balls and strikes, and he hasn't, so they see themselves as vindicated in their view; but neither has he been a swashbuckling activist, so their view of their own vindication outstrips a reasonable look at the post-confirmation evidence. Some effectively accepted the metaphor and voted for him as if he would loyally follow it, although they must have known the metaphor was never all that descriptive; now they can use the evidence that he is actually willing to overrule decisions as a basis for saying that he has proved far worse than they could have imagined. This view, too, seems overstated, as well as somewhat naive. My point is not to bury or praise Roberts and Alito -- or Sotomayor -- but to suggest that each side views itself as wholly confirmed in predicting that these Justices would be disasters, and thus wholly justified in raising the rhetorical stakes for the next nomination, although the evidence seems more complex and nuanced than those views would allow.

Posted by: Paul Horwitz | Apr 12, 2010 9:46:31 AM

To put the point in less strident terms, everything depends on the baseline by which you measure activism. The nominees themselves all draw the line for a "non-activist" as a robot who mechanically applies the law. Compared to that standard, everybody is an activist. But that is the standard they have set for themselves, and apparently the standard that the public demands, so it is not as if the standard has no meaning or usefulness.

You seek to draw a very different line, so that a non-activist is a judge who is only somewhat political and has a smaller-than-average hit list of precedents he would really like to overrule. Suffice it to say that your "non-activist" would never get confirmed.

Posted by: anon | Apr 11, 2010 11:24:48 PM

It is hard to reconcile the statement that "any Justice will end up arguing that some precedents should be narrowed or overruled" with the John Roberts of "umpire calling balls and strikes" fame. So far as the liberal interest groups are concerned, they said that John Roberts wouldn't just be calling balls and strikes, and they have been proven absolutely right by the "look afresh at new evidence." Your apparent point is that EVERYBODY knew that Roberts was lying, so there is no fraud. Not a very persuasive defense.

Posted by: anon | Apr 11, 2010 11:08:07 PM

Yeah, Roberts has only consistently sought to undermine and weak the entire project of civil rights law in America. Ho hum.

Posted by: Anonsters | Apr 11, 2010 10:56:56 PM

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