Searching for Scalia in 2018: Measuring the 'Scalia-ness' of President Trump's Supreme Court Shortlist

Abstract

With rumors of a retirement this summer on the Supreme Court, President Trump may have another chance to fulfill his campaign pledge to nominate justices “in the mold of Justice Scalia.” By initial accounts, he fulfilled that promise with the nomination of Justice Gorsuch, whose early tenure on the Court has been described as rather Scalia-like. Subsequently, the President has expanded his list of potential nominees to twenty-five. However, not all on that shortlist may be similarly “in the mold of Justice Scalia.” We thus updated our previous study measuring the Scalia-ness of the potential nominees. We added Judges Brett Kavanaugh and Amul Thapar. We improved the three original measures: originalism, textualism, and writing separately. We also added three additional measures that were characteristic of Justice Scalia: ghostwriting (the degree clerks play a role in writing a judge’s opinions); years as a law professor; and percentage of one’s life outside of D.C. Finally, for comparison’s sake, we included the lower court records of Chief Justice Roberts and Justices Alito, Sotomayor, and Gorsuch. We then used these variables to create two versions of the Scalia-ness Index. The simple version merely includes originalism and textualism, the most important and defining of Scalia’s traits. The complex version includes all six variables, but with originalism and textualism weighted significantly more than the other two process-based variables, and with the two background-based variables weighted the least. The results confirmed that as far as being a judge like Justice Scalia, the Trump short-listers are not created equal. In fact, there is a wide gulf between the top six and the rest. And of those top six, third through sixth place were lumped together, followed by a significant gap to second place, and then a rather hefty distance to the most Scalia-like of the short-listers. Given the abstractness of the Scalia-ness Index Scores, using percentiles we translated the scores into 2017 income and IQ scores. For example, for the complex Index, then-Judge Gorsuch would have been third with a 2017 income of $60,008, followed closely by three other judges ranging from $58,016 to $60,001. (The trailing short-listers ranged from $21,381 to $32,157, with then-Judge Roberts bringing up the rear.) As to the two judges ahead of Gorsuch, they were the equivalent of a 2017 income of $75,597 and $292,372, respectively. The simple Index produced similar results. If Scalia-ness had been an Olympic speed skating race, it would have been a boring one: the gold medal winner finishing all by himself, followed sometime later by the silver medalist all by himself, followed by a pack of four fighting for bronze, followed by everyone else lagging rather far behind. President Reagan used to say, “Trust, but verify.” Under the assumption that the best predictor of future behavior is past behavior, some judges empirically appear that they’ll be more Scalia-like than others if placed on the Supreme Court. Past Republican Presidents have often relied on too much trust and too little verification in judicial nominations, with disastrous results, including but not limited to David Souter and John Paul Stevens. We strongly recommend the White House demand proof of Scalia-ness. Here is some. Additionally, and more broadly, we argue that since data-driven decision-making has transformed the rest of the world, it should begin to play a more prominent role in decisions about judicial nominees. Doing so will provide more predictive power to the vetting process. The methodology we employ here provides an example of what could be done going forward.