Sotomayor and Liberalism in the Strange World of Political Science

(sent to LawCourts in reply to an inquiry about how "liberal" Sotomayor is expected to be based upon newspaper-confirmation scores. I am a critic of how this whole enterprise works)

Mark:

Whatever may be anyone's private views, the prediction announced here is a function of a model Jeff uses. The logic of the model doesn't work that way you suggest . It doesn't offer predictions in the sense of prognostication. The output is solely a function of the input and the logic of the mathematical specification.

None of the variables account for the points you raise. The dependent variable coded by graduate students is rather "blind." If the decision favors a criminal defendant in a criminal case, for example, it gets thrown in the "liberal bin." If not, it gets the other one. The model doesn't consider what the substantive issue was, whether it shifted over time, whether it was mundane, whether it was big or small, whether the republican party actually supported it, whether anyone even cared, whether it instrumentally created "conservative doctrine" while disposing in favor of the defendant, and so forth. In short, there is no assessment of qualitative factors.

Furthermore, because about half of the docket is excluded from the prediction -- as are various justices from before the ascendancy of Earl Warren -- the prediction is apparently limited to civil liberties cases, and assumes (as all of these sorts of models do) that the past controls the future. (The past meaning only Warren Court forward).

A couple of important points to keep in mind. What drives these models statistically is the presence of justices who had rather extreme tendencies to have decided for or against civil liberties claimants during the Warren and anti-Warren periods of the Court. And more specifically, to have decided criminal cases, which comprise the bulk of the cases that are said to be "civil liberties." (You really could call it the criminal cases and remaining civil liberties docket if you wanted to). Hence, what drives the model are justices like Rehnquist who decided in favor of criminal-plus claimants about 20% of the time (roughly) and the big-time Warren justices, some of whom hit the 80% mark.

Today's justices are more around the 33-65 range -- excluding, I think, Thomas, who is the only one still in the 20s the last time I checked (a few years ago). [I quit doing this work for obvious reasons]. I think Scalia is around 29 or something. (Even he may have made it to 30, I don't know). Jeff's model indeed assumes that the old guard is still there when the prediction is made, because all that the model sees are a bunch of numbers in Stata.

Even so, you will note that the model only produces a 62. Why? Because most justices for which we have data are not that directional when it comes to deciding for or against the claimants. The non-directional justices clog the model.

What is interesting about this is that if Sotomayor does decide whatever civil liberties cases she does -- even if they are not as heavy in criminal cases or anything like the ones from the 60s and 70s -- it makes no real difference. If she comes out a wild 78 or 80 (like the good old days), you can say "the newspaper scores were right about her." But if she winds up at 60, you can say "the model was right." And if she is anything near this side of 50, the industry continues. Next time, the model simply shaves the prediction for someone like her to a 60 or 59 or something (shaving for the mistake). So long as Rehnquist and the Warren people are in the Stata machine, and so long as the docket is shaved, it can't lose. (Plus, take away the old justices).

So in conclusion, there is in fact nothing to the prediction that considers anything you raised.

Regards and thanks.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
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