The Monkey Cage

Jonathan Mirsky writes,

When the Dalai Lama visited Oxford, the head of one of the institutions where he spoke, who has connections with China, stipulated that the name of the place must not be used in news reports; nor could a picture be taken of the outside of the building while the Dalai Lama was there.

He seems to be deliberately avoiding stating the name of the Oxford institution. But they can’t really stop him from revealing it, right? I mean, what authority does “the head of one of the institutions” at Oxford have to “stipulate” what will be stated in news reports? Is there something I’m missing here???

Posted by Andrew Gelman at 10:40 PM | Permalink | Comments (6)

On Friday, 55 United States Senators and 250 members of the House filed an amicus brief in District of Columbia v. Heller. The amicus brief urged the Supreme Court to support a lower court decision overturning Washington D.C.’s ban on handguns. The lower court opinion raised questions about the appropriateness of any gun control legislation. The Bush administration’s Solicitor General filed a brief arguing that the categorical approach of the lower court could endanger federal gun control measures. The Bush administration urged the Court to remand the case to see if the District’s ban was “unreasonable.”

Vice-President Cheney broke with the Bush administration and signed the congressional brief as the “President of the Senate.” Having the Vice-President sign a brief taking a position that is different than the administration’s is unprecedented. Given the vice-president’s well known tendency to shoot lawyers (here, more, more, more, more, don’t stop), it is also worrisome to those of us who live in the city with the nation’s highest per capita rate of lawyers (here).

Although the work of numerous political scientists (e.g. Richard Pacelle’s book Between Law & Politics: The Solicitor General and the Structuring of Race, Gender, and Reproductive Rights Litigation; Kevin McGuire book The Supreme Court Bar: Legal Elites in the Washington Community; an article I coauthored with Mike Bailey and Brian Kamoie; and an article by Jeffrey Segal) have clearly demonstrated that briefs by the solicitor general do influence court decision-making, the role that congressional amici briefs play is not as clear.

In her recently published book, Judithanne Scourfield McLauchlan found congressional amicus briefs to have a virtually non-existent impact on Court decision-making. She found that congressional amicus briefs were cited by the justices in just 10% of the cases where they were filed. Likewise, the position embraced by the amicus brief when there were amicus brief on only one side prevailed in only 54% of the cases. Her findings are similar to those that Rachel Paine Caufield found in her dissertation and presented at the 2002 annual meeting of the Midwest Political Science Association. Presumably, a monkey would have a 50% success rate. I should note that I compare members of Congress to monkeys because this is the monkey cage and one gets bonus points for employing the word monkey, not because I view the typical member of Congress as a banana hungry ape who refused to adopt an amendment that would prevent NASA from using Rhesus monkeys in space experiments.

If briefs don’t matter, why file? Rorie Spill Solberg and Eric Heberlig demonstrate in their 2004 gated article that members of Congress cosign onto amicus briefs as a mechanism for currying favor with their constituents and interested interest groups. In other words, position taking and grand-standing is alive and well on Capitol Hill. Of course, if the Court overturns the District’s ban and prohibits the district from banning hand-guns and automatic weapons, it is not clear what else will be alive and well in the Capitol.

Posted by Forrest Maltzman at 04:32 AM | Permalink | Comments (3)

Upon taking his seat at the center of the bench, Chief Justice John Roberts assumed the cause embraced by his predecessor—a judicial pay raise. In December, the House Judiciary committee voted 12-5 to raise the pay of judges on the U.S. District Courts to $218,000 (increasing it from its current level of $169,300), U.S. Courts of Appeals judges to $231,100 (currently $179,5000), and Supreme Court justices to $267,900 (currently $208,100). Yesterday, the Senate Judiciary committee approved a comparable bill giving federal judges a 29% pay raise.

The bills would restore judicial pay to the same level that judges would have received if Congress had granted them the same cost-of-living pay adjustments that other federal employees have received since 1989—not a full restoration but a significant one. Why did federal judicial pay fall behind other federal salaries? A large part of the explanation is that judicial pay raises since 1989 have typically been tied to pay raises for members of Congress.

A number of members of Congress and justices have argued that judges are retiring because of the failure of their pay to keep pace. Justice Scalia noted that “More and more, we cannot attract the really bright lawyers. It’s too much of a sacrifice” (here). My colleague Paul Wahlbeck and Jim Spriggs studied retirements from the Federal Court of Appeals and discovered that “increases in salary reduce the expected number of Democrat and Republican retirements….” (1994, 589-560, gated here). A similar finding (for district courts) was reached by Deborah Barrow and Gary Zuk (gated, here).

Although Democrats have historically supported attempts to raise judicial salaries, there now appears to be bipartisan support for raising judicial salaries. Why? One possibility is that the bench is now dominated by jurists appointed by Republican presidents and the upcoming election may provide a Democrat with a large number of judicial vacancies. Such fear would inevitably be reinforced by the recent high-profile retirements of conservative judges (here, here) who left the bench and secured significantly higher salaries. Also note that there is an important provision in the bill that would create a disincentive to leaving the bench for higher paying private sector jobs: The bill reduces the pension benefit of a retired judge by $1 for every $2 he or she earns above the old salary. Why include this provision? Research by David Nixon and J. David Haskin shows that once judicial pensions became tied to current salary levels, raising judicial salaries induced retirements (gated here).

A second and very cynical explanation for the pay raise is that historically congressional salaries have been tied to judicial salaries. Is it possible that next year members of Congress will point out that they are paid much less than members of the executive and legislative branches and thus deserve a pay raise? Nah. That would be too crass. I am sure there is a good third explanation––it is the right thing to do. Perhaps, but let’s see first what Congress does next year with their own pay.

Posted by Forrest Maltzman at 08:10 PM | Permalink | Comments (2)

Senators Arlen Specter (R-PA), John Cornyn (R-TX), Dick Durbin (D-IL), Russ Feingold (D-WI), Charles Grassley (R-IA), and Chuck Schumer (D-NY) are cosponsoring a bill to bring cameras to the Supreme Court. The bill would require the Supreme Court to televise all of its open sessions, unless the Court decides by majority vote that allowing such coverage in a particular case would violate the due process rights of any of the parties involved. The bill was recently approved by the Senate Judiciary Committee. Given that the bill attracts sponsors from left, center, and right of the ideological spectrum, it is likely that Congress will eventually attempt to mandate cameras in the Court.

During his confirmation hearings, John Roberts committed to exploring this issue more thoroughly and Samuel Alito reminded the Senate Judiciary committee during his confirmation hearings that he had voted to allow televised coverage when he served on the Court of Appeals for the Third Circuit. Allowing cameras in the courtroom would be consistent with recent steps towards opening up the Court. It would also be consistent with the pleas of political scientists (here), journalists (here), and lawyers (here) for greater transparency. If the court has warts, it has been argued, the public should see them.

Recently, Chief Justice Roberts expressed a reluctance to allow cameras in the courtroom. He explained at a conference for the Ninth Circuit, “we don’t have oral arguments to show the public how we function. We have them to learn about a particular case in a particular way.” While Roberts has become skeptical of the televising of the Court, Justices David Souter, Stephen Breyer, Anthony Kennedy, Antonio Scalia and Clarence Thomas have publicly opposed televised coverage of court proceedings. Although I am skeptical that the television of oral arguments will deprive justices of necessary information, it is conceivable that the televising of oral arguments could create warts, rather than simply showcasing, existing ones.

In her path-breaking experiments comparing televised “civilized” and “uncivilized” exchange of views that were discussed previously on this blog, Diana Mutz demonstrates that uncivil exchanges generate more attention from viewers, stronger emotional reactions, and less legitimacy for oppositional views. Similarly, studies have found that public exposure to the messiness of the legislative process undermines public confidence in Congress. We like sausage, but we don’t like to see it made.
It seems likely that televising proceedings of the Supreme Court could entice lawyers to make less civilized arguments for the sake of securing the attention and sympathy of the public. Televising the Court could undermine the Court’s legitimacy and damage the democratic process.

Of course, there would be a silver lining if Court opened its oral arguments to T.V. Televised oral arguments would inevitably improve my judicial process lectures. However, even if Congress were to mandate television cameras, it seems unlikely that the justices would let the new law stand. Most likely, they would declare such a bill unconstitutional, and keep the cameras at a safe distance out on Capitol Hill.

Continue reading "Lights, Camera, and ????–––Cameras at the Supreme Court" »

Posted by Forrest Maltzman at 12:45 PM | Permalink | Comments (2)

Looking for funding for your favorite charity? Take a judge to lunch.

According to a recent New York Times story by Adam Liptak, judges have the power to direct left-over funds from class-action lawsuits to virtually any charitable organization they please — including (a popular choice) their own alma mater. And “judges all over the country have gotten into the business of doling out leftover class-action settlement money, sometimes to organizations only tangentially related to the subject of the lawsuit.” Liptak mentions, for example, that $6 million of leftovers from an anti-trust class-action suit involving fashion models was doled out to various charities, including $1 million to an eating disorder program and $500,000 to a substance abuse program. And, though I blush to mention it, the, ahem, George Washington University Law School was given more than $5 million from unclaimed funds in a suit involving chemical pricing.

So widespread has this practice become and so lucrative are its rewards that charitable organizations are now hiring lawyers to lobby judges for the leftovers. As Liptak concludes, “Judges are turning into grant administrators, and some of them are starting to enjoy it. Who wouldn’t?” See the full story here.

Posted by Lee Sigelman at 12:17 PM | Permalink | Comments (0)