John Kastellec sent me an interesting article by Jeff Lax, Justin Phillips, and himself with evidence on the relevance of state-level public opinion to Senators’ votes on Supreme Court nominees. Nice analysis and many pretty graphs. I have a few comments here.
One of the most interesting examples of blogs having political consequences was the resignation last year of Alberto Gonzales as a result of a political scandal that Josh Marshall and other left-leaning bloggers helped precipitate, through uncovering evidence of patterns in hiring and firing of US Attorneys by the Bush administration. This is a politically consequential question in large part because of suggestions that prosecutors may have partisan bias - and that these biases may be reinforced if prosecutors fear that they will be fired for not being partisan enough in their prosecution patterns. But good evidence on the consequences of partisan bias is hard to get, because we don’t have good data on the cases that prosecutors choose among when they decide whether or not to start a prosecution; we only have data on the cases that prosecutors have chosen. In other words, we don’t have good information on the cases that prosecutors have decided not to take up.
Sanford Gordon has a really interesting paper at SSRN which attempts to figure out whether US Attorney prosecutions of public corruption cases are indeed biased given available information. His arguments may seem at first counterintuitive - but they seem sound to me. He claims that if Republican US Attorneys are biased so that they are more likely to prosecute Democrats, and Democratic US Attorneys are more likely to prosecute Republicans, we should expect that Democrats will on average receive lower sentences when prosecuted by Republicans, and Republicans will receive lower sentences when prosecuted by Democrats. The reason is straightforward. As Gordon argues, if a prosecutor is enthusiastic to prosecute political opponents, the prosecutor will pursue weaker cases against these opponents than against her political allies. Weaker cases mean, on average, lower sentences.
To test these arguments, Gordon looks at prosecution patterns for a two year period under both the Clinton and Bush II administrations. He finds that, as expected, there is evidence of partisan bias both by Republican and Democratic US attorneys. Both seem inclined to prosecute weak cases against their opponents that they might not pursue if they were cases against political allies. Interestingly, Gordon also finds some reason to believe that his measure under-estimates the degree of bias under the Bush administration than the Clinton administration. In his words:
I also find evidence that defendants with identifiable partisan affiliations are disproportionately Democratic under both administrations. This persistent disproportionality suggests that the findings concerning disparities in sentencing might understate the actual level of partisan bias under the Bush administration (i.e., the true level of bias under Bush is higher than measured), while overstating partisan bias under the Clinton administration (i.e., the true level of bias under Clinton is lower than measured).
Over at PolySigh, I started the Charles Whittaker Watch to keep track of the increasingly wacky statements of Supreme Court Justice Antonin Scalia. The watch is named for Justice Charles Whittaker who resigned from the Court after suffering a nervous breakdown. You can check out other watch entries here, here, here, here, and here.
In our latest update, Justice Scalia claimed in his dissenting opinion in Boumediene v. Bush, “At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield.” It turns out that the battlefield now includes appearing in documentaries.
The Court has released the opinion in Boumediene v. Bush (06-1195) and Al-Odah v. United States (06-1196), on whether the Military Commissions Act of 2006 violates the habeas corpus rights of foreign detainees held at Guantanamo Bay. The ruling below, which found for the government, is reversed. Justice Kennedy wrote the opinion. The Chief Justice, Justice Scalia, Thomas and Alito dissented.
That is from SCOTUSblog, who has a person live-blogging from the Court.
Addendum: Here is the majority opinion in Boumediene.