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September 10, 2010


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Marc DeGirolami

Without commenting on the substance of the post, I disagree that the data that you have supplied about these judges' backgrounds has any necessary connection whatsoever to their judicial philosophies or political ideologies. The political affiliation of a nominating president, particularly when the nomination happened two decades ago or more, bears a doubtful connection to the judge's current views. Still more remote, and possibly entirely disconnected to anything relevant, is the political affiliation of the nominating president of the old judge for whom the new judge clerked.

Orin Kerr


I agree with Marc that this post comes up short. As I'm sure you know, the ideology of District Court appointments in Blue States like Massachusetts and California are a very mixed bag. More broadly, the same method you use seems to fail when applied to lots of famous cases. Most obviously, Earl Warren, William Brennan, and Harry Blackmun were all appointed by Republicans. And Earl Warren was a tough-on-crime District Attorney for 14 years before running for state wide office and then becoming the GOP Vice-Presidential nominee. Yet these three judges are probably the three Justices most often referred to as activists. The lesson, I think, is that when we measure whether a judge is a judicial activist, we should do so by looking at their opinions -- not by looking at some features of their resumes from decades earlier and then concluding that based on them such a label is "possible" or "impossible."

David S. Cohen

Marc and Orin - you both are absolutely right. Yet, nothing in my post is to the contrary. All I said was that this group of judges does not have the background that you can immediately cry "activist" because they are, say, liberals who used to work for the ACLU and were appointed by Democrats. There might be something else, as you note Orin, that makes them "activists," but it's not their backgrounds. This post didn't claim otherwise.

Orin Kerr


I see. I didn't see that because there a lot of variables at play here: Views of good policy; views of the constitution (which at least in my view are quite different from good policy); the ideological spread among district judges, etc. Perhaps I was confused by your suggestion that the merits of these cases under the Constitution is "undeniable": Given that many people of good faith deny them, even people posting in this very comment thread, that seems like an unusual word to chose.

Marc DeGirolami

David and Orin -- just a small addendum, since it may be that Orin is referring to me when he mentions folks posting on this thread. There are some variables mentioned by Orin which I believe are more plausibly deniable than others. And I appreciate David's clarifying comment above: I agree that none of the three judges listed are obviously describable as "activists," or even "liberal activists," based on the details of their backgrounds supplied by David alone. That said, I very much agree with Orin that judicial opinions themselves, rather than backgrounds, are the best measure of ideological commitment.

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