Merrick Garland’s placement on this New York Times chart (3/16/16) is based on nothing more than a guess that he’ll vote similarly to other judges.
A Daily Kos post by Kerry Eleveld (3/17/16) promises “some good news for progressives” concerned about Barack Obama’s nomination of Merrick Garland to the Supreme Court. Under the headline, “How Far Left Could Obama’s Supreme Court Nominee Push the Supreme Court? Pretty Far,” Eleveld writes:
Here’s some good news for progressives: Scoring from four political scientists suggests that President Obama’s Supreme Court nominee, DC Circuit Court Judge Merrick Garland, would land to the left of six sitting justices, including Elena Kagan and Stephen Breyer, who are both considered to be part of the court’s liberal cohort. Only the notorious Ruth Bader Ginsberg and Sonia Sotomayor score to the left of Garland according to their history of rulings…. So despite disappointment among many progressives with Obama’s pick, if confirmed, Garland could potentially move the court further left than it’s been in half a century or more, reports the New York Times.
But Eleveld appears to have misread the New York Times feature (3/16/16) that places Garland to the left of Kagan and Breyer. The Martin/Quinn scores that are the basis for this ranking are based on how justices voted on Supreme Court rulings*; since Garland is not a Supreme Court justice, he doesn’t have any votes to rank. Instead, as the New York Times (3/16/16) explained, “Judge Garland’s score is based on the score of his appointing president, Bill Clinton.”
I would think this means that it’s based on the votes of justices appointed by Clinton—Ginsberg and Breyer—but it can’t be that simple, because the Times’ chart places Garland much closer to Ginsberg than to Breyer. (He’s also placed closer to Kagan than to the other justice appointed by Obama, Sotomayor.) It seems clear, though, that it isn’t based on Garland’s own “history of rulings.”
The Times quotes one of the political scientists behind the rankings as saying that assigning a score based on the appointing president is considered to be a “reasonably good predictor of voting on the Supreme Court.” But that depends what you mean by “reasonably good”; David Souter and Clarence Thomas, after all, were both appointed by George Bush Sr., for example, and their Martin/Quinn scores were wildly different. Sandra Day O’Connor and Antonin Scalia, both nominated by Ronald Reagan, are a similarly divergent pair, not quite as extreme—as are Dwight Eisenhower’s John Marshall Harlan and William Brennan.
From Wikipedia.
Would Garland vote like other Obama appointees, which could tip the balance of the Court significantly? Or would he be an ideological surprise, like Souter was for Bush, or Brennan for Eisenhower—but in the opposite direction? The bad news for progressives is that the Martin/Quinn scores are of no help in answering that question.
* Keep in mind, as well, that Martin/Quinn scores are based solely on differences between judges’ voting records; the actual content of the votes is not considered. In other words, eight Reagan Republican judges voting together with one Stormfront judge voting to their right would appear exactly the same as eight Revolutionary Communist Party judges voting together with one Socialist Workers Party judge voting to their right–that is, as eight middle-of-the-road judges with one far-right outlier. This makes the use of Martin/Quinn for comparisons over time extremely sketchy.
Jim Naureckas is the editor of FAIR.org. Follow him on Twitter: @JNaureckas.
This piece was reprinted by RINF Alternative News with permission from FAIR.