What if Supreme Court justices were picked based on their career numbers instead of their politics?
THERE IS A REVOLUTION AFOOT IN BASEBALL, a new way of evaluating talent. The father of this new school is the autodidact Bill James, its early adopter is Oakland A's general manager Billy Beane, and its scribe is Michael Lewis. Lewis wrote Moneyball, the best-selling book that tells the story of how Beane implemented the innovations of James and a rogues' gallery of like-minded statisticians. Beane took scouts who evaluated athletic promise with their gut, and replaced them with ones who measured talent using cold, hard numbers.
Recently, Stephen Choi and Mitu Gulati, law professors at Berkeley and Georgetown respectively, set out to discover whether a similar revolution is possible in evaluating the federal judiciary. As the acrimonious confirmation hearings during the Bush Administration attest, there is no consensus in Washington about what makes a good judge, and the debate will surely become more hostile when one of the Rehnquist Nine retires in the coming seasons. Choi and Gulati's experiment was to see whether there is a way of using objective numbers to replace both the subjective assessments of a judge's ability and the fuzzy math known as political calculus (for an example of how inaccurate the latter can be, see Souter, David Hackett). Is it possible to gauge a judge's abilities using statistics, and if so, which judges do the numbers reveal to have the most promise?
Choi and Gulati focused on three indicators of judicial performance: productivity, quality, and
independence. Productivity is measured by the number of opinions each judge writes.
The quality score is derived from how often, and how prominently, other judges cite those opinions (for productivity and quality, zero is the average score). The independence score measures how often a judge disagrees with colleagues from both political parties (zero is the best score). The numbers are calibrated to correct for differences among the circuits and for variations in judicial tenure.
Of course, this scouting system has its imperfections. Choi and Gulati stuck to federal circuit court judges, examined only those who were on their courts in 1998, and ranked only the 74 judges who were under 66 years old in 2003. Because of these restrictions, prominent recent court additions are off the list, including Sonia Sotomayor, a likely contender for a Kerry nomination. And some of the names bandied about for court appointment, such as White House counsel Alberto Gonzales, do not sit on a federal appeals court. Still, a key number justifies the focus on the appeals courtsseven members of the Rehnquist Court came up from the circuits.
It may be too soon to predict Bush and Kerry's draft picks, but here's a peek at how the stats of some of the murmured-about names measure up with the all-stars. Legal Affairs has invited nine judges to our Supreme Court tryouts: the three with the best stats (Richard Posner, Frank Easterbrook, and J. Harvie Wilkinson III), three believed to be on the Bush short list (Michael Luttig, Edith Jones, and Emilio Garza), and three potential Kerry nominees (Diane Wood, David Tatel, and Jose Cabranes). The judges' uniform numbers reflect their ranks.
1 Richard Posner
Ht.: 6'0"; Bats: Left; Throws: Left; Nominated: Ronald Reagan; Signed: 7th Circuit-1981; Born: New York, NY; Home: Chicago, IL
2 Frank Easterbrook
Ht.: 6'4"; Bats: Right; Throws: Right; Nominated: Ronald Reagan; Signed: 7th Circuit-1985; Born: Buffalo, NY; Home: Chicago, IL
3 J. Harvie
Ht.: 5'9"; Bats: Right; Throws: Right; Nominated: Ronald Reagan; Signed: 4th Circuit-1984; Born: New York, NY; Home: Charlottesville, VA
13 Edith Jones
Ht.: 5'3"; Bats: Left; Throws: Left; Nominated: Ronald Reagan; Signed: 5th Circuit-1985; Born: Philadelphia, PA; Home: Houston, TX
10 Michael Luttig
Ht.: 5'9"; Bats: Right; Throws: Right; Nominated: George H. W. Bush; Signed: 4th Circuit-1991; Born: Tyler, TX; Home: Vienna, VA
36 Emilio Garza
Ht.: 6'1"; Bats: Right; Throws: Right; Nominated: George H. W. Bush; Signed: 5th Circuit-1991; Born: San Antonio, TX; Home: San Antonio, TX
54 Jose Cabranes
Ht.: 6'0"; Bats: Left; Throws: Left; Nominated: Bill Clinton; Signed: 2nd Circuit-1994; Born: Mayaguez, PR; Home: New Haven, CT
44 David Tatel
Ht.: 5'9"; Bats: Right; Throws: Right; Nominated: Bill Clinton; Signed: D.C. Circuit-1994; Born: Washington, DC; Home: Chevy Chase, MD
8 Diane Wood
Ht.: 5'6"; Bats: Right; Throws: Right; Nominated: Bill Clinton; Signed: 7th Circuit-1995; Born: Plainfield, NJ; Home: Hinsdale, IL
Uniform Number: Rank