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Alito By The Numbers:

John Lott has some interesting numbers on Alito's tenure on the Court of Appeals. I thought this was sort of interesting:

Law professors Stephen Choi of New York University and Mitu Gulati of Georgetown University did a study of the circuit court judges appointed from the administration of presidents Jimmy Carter through the first term of Bill Clinton on several issues. Among them was whether a judge votes in lockstep with other judges nominated by the same political party. They found that Alito was the 12th-most politically independent Republican of the 55 that they studied. If he had been a Democrat, his ranking would have made him the eighth- most politically independent out of 42.

Alito has had some influence on the most important legal issue of the day, ranking about in the middle of the circuit court judges based on how frequently the Supreme Court cites his decisions. He also works hard, placing in the top 30 percent based on the number of opinions he has written. His legal background is stellar: a graduate of Yale Law School, he served on the law review, clerked for the circuit court, and is widely published in law journals.

For those less quantitatively inclined:

The Almanac of the Federal Judiciary regularly surveys lawyers who practice before federal judges. Half of those surveyed viewed him as politically neutral; all of those polled thought he had a good judicial temperament.

Update:

Professor Frank Cross challenges Lott's interpretation of Choi and Gulati in the Comments:

Perhaps unsurprisingly, this review by John Lott is quite misleading. Under Choi & Gulati's citation-based measure of judicial quality, Alito comes out very poorly, well down in the bottom half of all circuit court judges. That was their primary measure, and Lott doesn't mention it. Now, I've got a forthcoming paper that argues that this measure is an unreliable one and Alito suffers not for lack of quality but because it is a minimalist. But it's still misleading to cite a couple of categories where he does well but ignore their leading category, where he did quite poorly.

And independence in their study doesn't mean judicial independence, or anything like it. His high score here probably just means that 3rd Circuit Republicans are pretty liberal, as has been noted on this blog, so he is more likely to disagree with them and write a conservative opinion.

For those who want more, the relevant papers by Choi and Gulati are available here and here.

frankcross (mail):
Perhaps unsurprisingly, this review by John Lott is quite misleading. Under Choi &Gulati's citation-based measure of judicial quality, Alito comes out very poorly, well down in the bottom half of all circuit court judges. That was their primary measure, and Lott doesn't mention it. Now, I've got a forthcoming paper that argues that this measure is an unreliable one and Alito suffers not for lack of quality but because it is a minimalist. But it's still misleading to cite a couple of categories where he does well but ignore their leading category, where he did quite poorly.

And independence in their study doesn't mean judicial independence, or anything like it. His high score here probably just means that 3rd Circuit Republicans are pretty liberal, as has been noted on this blog, so he is more likely to disagree with them and write a conservative opinion.
11.4.2005 5:40pm
Jeff Leyser (mail):
Perhaps unsurprisingly, this review by John Lott is quite misleading.

Misleading? That's not what Mary Roush says!
11.4.2005 7:20pm
Commenterlein (mail):
Counting down the seconds before the first John Lott sock puppet shows up in the comments....
11.4.2005 7:25pm
jd:
I was going to say, does any actually listen to John Lott anymore?
11.4.2005 7:45pm
Antonin:
John Lott? Next from the Volokh Conspiracy: Jayson Blair's latest investigative breakthrough.
11.4.2005 8:27pm
Per Son:
It is a shame for conservatives that they still listen to Lott. He is a "scholar" at AEI and will be part of this years Federalist Society Meeting.
11.4.2005 9:19pm
Blar (mail) (www):
So Alito's high independence rating could mean that he's more moderate than other Republican-appointed judges, or that he's more conservative than other Republican-appointed judges, or that he differs from other Republican-appointed judges in some other way. Thank you, John Lott. Informative as always.

One way that we could try to distinguish these three possibilities is to compare how often Alito disagrees with Democrat-appointed judges to how often other Republican-appointed judges disagree with Democrat-appointed judges. If he disagrees with the D's less often than the other R's do, that suggests that he has some moderate tendencies. If he disagrees more often, that suggests ultra-conservative tendencies. If he's in the middle of the pack, that suggests some other kind of independence. Can anyone do this analysis? I glanced at the Choi &Gulati appendices and didn't see the necessary information.

There may be other problems with Choi &Gulati's method that make this analysis less useful, though (e.g. did they correct for differences between Circuits?). There's always the alternative of looking at what's in Alito'ss opinions.
11.4.2005 9:47pm
Bruce Hayden (mail) (www):
One problem with looking at what is in Alito's opinions is that there are so many of them. Since few can be expected to actually read all of them, you are left with people on both sides picking and choosing what they look at.

Which brings me to my second point. In a WaPo article a couple of days ago that whenever Alito is given the choice, he typically comes down on the conservative side. Suntein uses some sort of pseudo-statistical methodology to (IMHO arbitrarily) pick the opinions he looks at. This meme is picked up by Adam Liptak and Jonathan D. Glater in a NYT article.

Far better to me are attempts at statistically classifying Judge Alito from all of his opinions using this sort of methodology, than the pseudo-statistical analysis utilized by Sunstein et al.
11.5.2005 10:13am
John Lott (mail) (www):
Unfortunately, I think that it is Frank Cross who is quite misleading here. For Choi and Gulati's overall ranking index, Alito is at 16th of the 73 circuit court judges who they report (he gets a.69, compared to a .66 for Stephen Trott and a .59 for Rosemary Barkett). It is true that he does score quite low on some ratings. The statement that I made was that Alito had "some Influence." Neither of the of the rankings that I mention are as high as the overall rating that I didn't mention.
11.5.2005 10:33am
John Lott (mail) (www):
As a further note, the most direct response is to look at what Choi and Gulati conclude about Alito in terms of their overall evaluation. They conclude that "those in the Bush Five did well," and Alito was one of those five that they singled out (their tournament paper, p. 65).
11.5.2005 11:17am
frankcross (mail):
Well, the papers are available for the reader to draw his or her own conclusion. However, the "overall ranking index" to which Mr. Lott refers is based on equal weighting of the three categories. Yet Choi &Gulati expressly disclaim the appropriateness of such equal weighting. So I'm not sure you can really say this is their overall ranking index.

I am not making a case against Alito, who I think is a good choice. But I think it was misleading for Mr. Lott to post Alito's ratings on two of three primary indices but omit his rating on the third index. Especially when that index was labeled quality. And I'm not sure whether I know this from the papers or from personal discussions, but it is this one that the authors considered the most important. Take a paper with three rating scales. The author reports the positive reports from two but ignores the negative results from the third. Can you think of any reason for this behavior other than to mislead the reader about the paper's findings?
11.5.2005 2:31pm
John Lott (mail) (www):
The title of the op-ed was "Alito Will Be Hard to Portray as an Extremist." The issue raised was whether Alito was a Republican ideologue. The first index that I discussed was the measure of whether he voted in lock step with other judges who were appointed by the same party. Choi and Gulati's index indicated that Alito did not vote in lock step with others from the same party. The next index that I mentioned was simply to show that he "has had some influence on the most important legal issues of the day." and that was to look at his citations by the Supreme Court. Since the piece also dealt with an appointment to the Supreme Court, I picked the one on his citations by the Supreme Court. By the way, Alito did very well on the measures of invocations of his name. I didn't mention those.

Bottom line. I discussed the first index because it was related to the issue of the op-ed. (I clearly defined for the readers what this index measured.) The Supreme Court index also seemed particular relevant. I could have picked indexes that made him look better or worse, but I picked the ones that I thought were most relevant to the points being discussed in the op-ed.
11.5.2005 3:37pm
John Lott (mail) (www):
One additional note. As noted earlier, Choi and Gulati do provide an overall index that rates Alito very highly. Despite qualifications on how to weight the different components of that index, most people would naturally focus on that index. Choi and Gulati picked equal weighting because it seemed the least arbitrary, and I think that is a reasonable first pass on their part. Their conclusion cited above that "those in the Bush Five did well" also rests on that overall index, so it is wrong (and misleading) to imply that Choi and Gulati dismiss this overall index and do not give it any weight. Mr. Cross hasn't really explained why if I simply wanted to make Alito look good, why I didn't just report the overall index.
11.5.2005 3:47pm
frankcross (mail):
Well, there are lots of ways to spin this. Choi &Gulati clearly think that Alito should not have been nominated. The whole point of their article was that it should be Posner, or several others, before Alito.

Had Mr. Lott simply reported the independence index, his argument might be stronger. But he supplemented that by listing every other measure (e.g., productivity) that makes Alito look good and ignoring the obviously important quality measure.
11.5.2005 5:17pm
John Lott (mail) (www):
Posner and Easterbrook clearly do by far the best in the rankings. But I don't know how much more clearly Choi and Gulati could make their statement that ""those in the Bush Five did well." I have gone through the entire paper and I can find no reference to Alito by Choi and Gulati that supports Mr. Cross's assertion that "Choi &Gulati clearly think that Alito should not have been nominated." Can Mr. Cross provide a single quote that contradicts Choi and Gulati's statement that ""those in the Bush Five did well."

Despite Mr. Cross claiming that Choi and Gulati disown their total index, he still offers no response to my point that Choi and Gulati use the total index ranking in their evaluations.

Mr. Cross also still offers no response to my point that if I simply wanted to make Alito look good, I would have used the Choi &Gulati total index or some of the other numbers that Choi &Gulati report that make Alito look even better than the numbers that I did mention.
11.5.2005 8:15pm
frankcross (mail):
I don't need a quote. That's the purpose of their paper. The point of their paper is that Supreme Court justices should be selected based on their methodology. That implies that Posner &Easterbrook should be selected. Ipso facto, not Alito.

I've got no problem with you reporting what you did. So these defenses of reporting what you did are a bit beside the point. My problem is what you didn't report. Under the law of securities fraud, this would be an actionable "half-truth".
11.5.2005 10:12pm
John Lott (mail) (www):
You do need a quote because my piece was obviously not to declare that Alito was the best qualified by the Choi and Gulati measure (though being 16 out 73 is pretty good (top 22%)). I am not even sure that my statements are as strong as Choi and Gulati's claim that everyone in the group of five that they singled out "did well." (If you can find someplace where I said that he was the very best pick, please let us know.) My points in these two paragraphs were that the evidence indicated that he did not vote in lock step with other Republicans, that he had shown "some influence" on the Supreme Court, and that he was in the top 30 percent in terms of how hard he worked (besides just being a fun one to report, this last point was also to implicitly note that he had produced a lot of opinions so that he had a long record to evaluate).

I don't believe for a second (nor do I think that despite your claims to the contrary you really believes) that Choi and Gulati would accept your claim for them that "Alito should not have been nominated." He is a good pick, though maybe not the very best. He is fairly independent of other Republicans.

If you are going to keep on personally attacking someone, it would be a little useful and show some honesty if you would admit that there are numbers that were both better and worse than the numbers that I used. I thought that these indexes accurately reflected information that was relevant for the point of the op-ed piece. If you wanted all the indexes discussed in the op-ed, you don't understand what space constraints mean and that there were lots of other numbers to be discussed. If you have a theory for why I didn't use the total ranking or the other high rankings provided by Choi and Gulati, I for one would be interested in hearing it. While you are at it, it would still be nice to see some defense for your claims regarding things such as the total index as well.

Finally, the point of the piece was that "It's going to be hard to paint Judge Samuel Alito, President George W. Bush's nominee to the U.S. Supreme Court, as an extremist." As far as I can tell you have provided no objection to this point.
11.5.2005 11:21pm
frankcross (mail):
Choi &Gulati may well favor Alito's confirmation, but they obviously think Posner should have been nominated. Posner is not Alito. That's a pretty simply syllogism that I made earlier.

As for my claims about the total index, Choi &Gulati themselves say that "as a matter of policy and preference it is unclear why these various measures should receive equal weighting." I don't think Judge Alito is an extremist, you keep chasing straw men.

But my point is this:
-- on the effort scale, Alito came out well, perhaps A-
-- on the independence scale, Alito came out well, again A or A-
-- on the quality scale, Alito came out poorly, about a C

I think it is misleading to suggest that this study supports Alito's confirmation, when he came out as a poor judge on quality. I think it is misleading to cite the other two scales and not mention the quality scale. Especially when you used the USSC citation quality scale, which the authors considered inferior to the one you did not mention.

I really don't think I made a personal attack, except very obliquely. I was just trying to inform the readers of this blog that your defense of Alito left out a great deal and would mislead them, if they were unfamiliar with the true breadth of the paper's findings.
11.6.2005 12:18pm
John Lott (mail) (www):
"Choi &Gulati may well favor Alito's confirmation, but they obviously think Posner should have been nominated. Posner is not Alito. That's a pretty simply syllogism that I made earlier."

*** At this point, I don't think that there is any disagreement. I also never wrote that Alito was the best possible choice.

"As for my claims about the total index, Choi &Gulati themselves say that 'as a matter of policy and preference it is unclear why these various measures should receive equal weighting.' I don't think Judge Alito is an extremist, you keep chasing straw men.

But my point is this:
-- on the effort scale, Alito came out well, perhaps A-
-- on the independence scale, Alito came out well, again A or A-
-- on the quality scale, Alito came out poorly, about a C"

*** OK, how do you get from this to saying that "Lott is quite misleading"? I don't know if putting Alito in the top 30 percent of effort is an A-, or top 21 percent on the independence scale is an A or A-, or if saying that he had "some influence" and about in the middle of the ranking is a C. (You seem to give out much higher letter grades than I did.) I could have used other ratings that showed him higher on the quality scale ("invocations") and I could have picked some lower (cites by outside circuit), but I used the one for citations by the Supreme Court for obvious reasons (though the invocations by the Supreme Court would have been higher). One sentence in the piece was spent on what seems to be the most contentious issue -- the quality scale.

"I think it is misleading to suggest that this study supports Alito's confirmation, when he came out as a poor judge on quality. I think it is misleading to cite the other two scales and not mention the quality scale. Especially when you used the USSC citation quality scale, which the authors considered inferior to the one you did not mention."

*** So what exactly is it that I said that was misleading? I could have quoted them as saying that "those in the Bush Five did well," but I just reported the percentage ranks that dealt with the rough three categories that Choi and Gulati thought were important.

"I really don't think I made a personal attack, except very obliquely. I was just trying to inform the readers of this blog that your defense of Alito left out a great deal and would mislead them, if they were unfamiliar with the true breadth of the paper's findings."

*** My guess is that your A, B, C rating system is more misleading than me just reporting the percentages. Could more than one sentence have been spent on the "quality index" discussion? Sure. But the one that I picked was neither the highest or lowest of the quality measures and all I said was that he had "some influence." One sentence was all the space that I had for an op-ed that was on the topic of whether Alito was an extremist.

After all this I am not really sure what your original beef was all about, and I have no clue where you claim that I was "quite misleading" came from.
11.6.2005 2:55pm
frankcross (mail):
I was using an inflated law school grading curve.

Perhaps I should give some context. I have the Choi &Gulati data and have analyzed it in various ways, as well as reading all the critics that I have found. I am famiiar the the findings and their validity. Because this is an area in which I research, I have fielded numerous inquiries about the Alito nomination. I have scrupulously avoided discussing the Choi &Gulati results because (a) I felt I could not do so honestly without addressing Alito's low quality rating in the process and (b) I think that rating is unfair to Alito for other reasons I have been researching. But I thought the full explanation was beyond what the press could reasonably offer in an article.

In short, I declined to make a post such as yours, because I believed it would be misleading to do so. This all happened before your post. Having made that conclusion for myself, I applied it to your post. Readers may draw their own conclusions.
11.6.2005 3:31pm
John Lott (mail) (www):
Thanks for the context. I appreciate it. I haven't read your research, though I would be interested in doing so if you could email a copy (I would appreciate it). What I conclude from you last comments is that you were not taking issue with me inaccurately reporting what Choi and Gulati wrote, but your research has found that there were significant problems with their research and that without noting those problems it is wrong to cite the Choi and Gulati findings. Since I don't know your critique, I can't really comment on the last point other than to say I am very happy to look at your work. I am putting the finishing touches on a book that uses their indexes (as well as the one by Landes and Lessig) and seeing your paper would be very helpful.
11.6.2005 3:54pm
John Lott (mail) (www):
Frank, I still haven't been sent a copy of your paper. Since you haven't stated here what your objections were to the citation measures used by Choi and Gulati, I would like to see someplace what your argument is.
11.10.2005 2:36pm
John Lott (mail) (www):
Frank, it has been a week since you last made claims that you said I was "quite misleading" since I didn't understand the critiques that you leveled against Choi and Gulati. I had no idea at the time and I still have no idea what your critiques were. If you are unwilling to post the points here, please email them to me in a timely manner.
11.13.2005 4:01pm