The LEO Test: Cause For Concern Over Roberts?
By Justin Gardner | Related entries in History, Ideas, Supreme CourtJonathon York has developed a fascinating test to judge where their political leanings lie. He calls it the LEO Test, which stands for Liberty, Equality and Order. I’ve blogged about York’s tests of Hillary v. Santorum and Andrew Sullivan‘s “conservatism” before.
Now he puts John Roberts to the test, and the initial findings trouble York.
Suffice it to say, these first scores were disturbing for a variety of reasons. First of all, if they are valid scores, then the Ramaprakash [v. FAA (2003)] decision indicates that Roberts holds fast to an extreme establishmentarian position far beyond that of other test subjects such as Rick Santorum or even Michael Peroutka. However, Roberts own testimony at his confirmation hearing for the DC Circuit Court suggests a level of restraint inconsistent with these scores (see especially p. 80).
However, York doesn’t put the blame on Roberts just yet.
This inconsistency suggests that some portion of the LEO test as it was applied to the Ramaprakash case and perhaps to judicial cases in general, is either incomplete, inaccurate or invalid.
So what’s the solution?
What, then, explains this peculiar result? Mark suggested a possible explanation–that the legal nature of judicial decisions of necessity incorporates establishmentarian language, for individual disputes are brought before the bench to be resolved in terms of the application of existing law. This hypothesis is not only reasonable, it can be tested, and my thanks go out to Jeremy Jose of Melbourne University‘s Political Interest Society for suggesting the means to do so.If the legal nature of judicial decisions distorts the results of a direct LEO test in favor of Order, then one can reasonably expect most court opinions to have similar results. Following Jeremy’s suggestion, I tested this hypothesis by “running the test on some notoriously liberal opinions”: Brown v. Board of Education of Topeka KS (1954), Miranda v. Arizona (1966), and the controversial Roe v. Wade (1973). The hypothesis predicts a high percentage of “Order” references for each of these cases.
What’s the result? Find out at The LEO Test, and be sure to tell them Donklephant sent you.
This entry was posted on Thursday, August 18th, 2005 and is filed under History, Ideas, Supreme Court. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
August 19th, 2005 at 3:53 am
I’m glad he took me up on my challenge :)
I wish his program were in a state which would allow us to do some tests of our own (I emailed him about it, it’s not). It’s an interesting project. Out of interest, how did you find out about the blog originally?
August 19th, 2005 at 8:56 am
Personally I’m hardly surprised that a ‘Republican’ President would choose a conservative judge…. I don’t understand the current climate that the Senators think that they should be able to block a nomination based on the fact that the judge is conservative… that is a dangerous precedent to begin.
As this country becomes more politicized and this type of ‘Confirmation Hearings and voting’ become the norm, it will just serve to delegiticize the Supreme Court Rulings in the future. Every ruling that they make will be seen as strictly political instead of being based on the law. Do we really want to project this image????
In the past it has been understood that the President, who is given the authority to select a nominee, generally gets who he/she wants as long as the person is qualified and is of good moral character. The country does not stay in one position as far as Conservative or Liberal, the pendulem swings back and forth depending on the circumstances. That is why a judge’s personal ideology isn’t supposed to be questioned – as different Presidents are elected and select nominees the Supreme Court should remain fairly evened out.
The only thing that a hearing should focus on is the judge’s qualifications, and past legal decisions to see if they were based on the law. PERIOD…
August 19th, 2005 at 10:44 am
Hi debsay,
first, thanks for coming by. Second, the reason I found the Ramaprakash signature disturbing is that it suggests so stringently an establishmentarian position that it actually falls into a completely different sphere from conservatism. It is my hope that I am wrong, and I’m trying to refine the test so that I can account for possible distortions. I’m trying to put together something both accurate and valid.
As for confirmation hearings, many of the questions asked have little to do with past legal decisions, except on the surface. This behavior is by no means new. I met a man who had been denied admission to the Illinois bar (in 1950) on the basis of his refusal to answer questions about his political leanings. He contested; it eventually went to SCOTUS, and he ultimately lost in a 5-4 decision. If this can happen to Professor Anastaplo before the state bar, what’s to stop the Senate from doing the same thing for judicial nominees?
August 19th, 2005 at 11:06 am
Funny, Jonathon asked me this same question last night and I first thought it was on your blog, but then we figured out that it was over on Winds of Change.
August 19th, 2005 at 11:58 am
jonathon,
It’s true that the hearings were used to ‘bash’ nominees so that the respective bases would see that they are ‘doing their job’ but, the nominees were generally voted on and approved… and not just by a small margin.
Now, politics are being injected so far that they aren’t going to even vote on some nominees. I just don’t think that this is a healthy way of doing things for our country. If there was something illegal in their past, or you found that they weren’t qualified, or something about their character etc. I can understand extending the debate…. but just because you don’t have the same political views shouldn’t come into it. Not everybody is going to agree with your point of view…
Politics just gets uglier everyday, when you see this kind of stuff going on – you really start to lose faith in our court system. It’s all about political views, qualifications be damned! Our courts should be the one place that politics take a back seat to common sense and the word of law.
August 19th, 2005 at 1:18 pm
York’s reports regarding his various LEO tests instills me with no small amount of good feeling about the spirit of scientific inquiry. Granted, his is a very “soft” science, but there’s no hiding of that. He seems very honest about his analysis, and I also applaud his efforts to emphasize even-handedness.