“Our
short
answer
is
that
Trump
judges
continue
to
dominate
the
Biden
judges,”
write
professors
Stephen
Choi
and
Mitu
Gulati
in
a
new
preliminary
draft
article
posted
yesterday.
As
a
provocative
tagline,
it
accomplished
its
task,
getting
pulled
into
social
media
posts
viewed
by
tens
of
thousands.
It’s
also
fitting
that
the
piece
got
boiled
down
to
its
most
bold,
yet
ultimately
vapid
claim,
since
their
methodology
for
determining
peak
judicial
performance
rewards
judges
for
being
wrong
both
often
and
loudly.
This
paper
follows
an
earlier
work
comparing
Trump’s
first-term
judges
to
Bush
and
Obama
judges
based
on
“productivity,
quality
and
independence,”
and
concluding
that
Trump’s
nominees
“performed
as
well,
if
not
better.”
But
every
attention-seeking
spectacle
invites
its
own
sequel
to
up
to
the
stakes.
With
the
benefit
of
a
few
more
years
of
Biden
judges,
the
authors
returned
to
the
subject
with
a
more
audacious
pull
quote.
Instead
of
“as
well,
if
not
better,”
this
time
the
Trump
judges
“dominate”
Biden’s.
It’s
a
Jordan
vs.
LeBron
level
argument
elevated
to
academia.
The
authors
admit
the
paper
is
intended
merely
to
“get
a
conversation
going
about
judicial
performance
based
on
objective
data
as
opposed
to
more
subjective
assertions
about
judicial
quality,”
a
display
of
modesty
violently
at
odds
with
the
decision
to
use
a
word
like
“dominate.”
But
sometimes
you’ve
got
to
channel
your
inner
Stephen
A.
Smith
to
get
traction.
To
measure
productivity,
we
start
with
the
total
number
of
reported
opinions
by
a
judge:
the
sum
of
majority,
concurring,
and
dissenting
opinions.
Judges
aren’t
paid
by
the
word.
The
only
opinion
that
needs
to
be
written
is
the
majority
opinion.
Dissents
—
and
definitely
concurrences
—
are
gratuitous.
“Writing
a
dissent
or
concurrence
is
voluntary
and
takes
extra
effort,”
the
authors
note,
mistaking
“effort”
with
“productive
effort.”
Unnecessary
work
isn’t
a
measure
of
“productivity,”
it’s
a
measure
of
a
busybody.
If
we
measured
productivity
as
a
matter
of
accomplishing
the
job
itself
faster
and
more
efficiently,
judges
churning
out
separate
concurrences
and
dissents
likely
slow
down
the
process
of
clearing
the
docket,
both
by
(a)
wasting
limited
time
and
resources
producing
opinions
that
don’t
matter
instead
of
their
assigned
majority
opinions,
and
(b)
by
forcing
the
majority
to
waste
time
and
resources
rebutting
those
separate
opinions
that
could
be
used
on
another
matter.
That’s
not
to
suggest
dissents
and
concurrences
are
a
universal
wastes
of
time,
but
suggesting
that
judges
are
more
“productive”
simply
by
writing
more
opinions
is
like
rewarding
the
player
who
took
the
most
shots
even
if
every
one
missed.
Unlike
trial
judges
working
alone,
there’s
not
an
obvious,
public-facing
metric
for
appellate
productivity.
Figuring
out
which
chambers
drags
down
every
matter
requires
inside
gossip
that
scholarly
studies
will
never
sufficiently
collect.
There
are
some
retired
judges
out
there
who
could
probably
tell
us
all
exactly
which
circuit
judges
are
“productive,”
but
they’re
not
talking.
It’s
not
hard
to
grasp
why
Trump
judges
excel
under
a
measure
of
pure
volume,
consequence
to
the
actual
decision
be
damned.
The
Federalist
Society
(note
that
FedSoc
will
say
it’s
just
a
humble
academic
club
and
that
it’s
a
coincidence
that
the
organized
Trump
legal
operation
and
its
own
members
form
a
perfect
circle
of
a
Venn
Diagram)
put
a
lot
of
effort
into
avoiding
another
Justice
David
Souter.
The
vetting
operation
is
detailed
and
runs
on
a
written
record.
A
careerist
Trump
judge
has
every
incentive
to
write
a
separate
opinion
on
everything
to
keep
their
tenure
portfolio
padded
in
case
the
Supreme
Court
opens
up.
Democrats
don’t
pick
judges
this
way
and
Bush
judges
are
now
too
old
to
get
called
up
to
the
majors.
Our
measure
of
judicial
influence
focuses
on
the
number
of
outside
circuit
case
citations
a
judge’s
authored
majority
opinion
receives.
Behold
the
self-licking
ice
cream
cone
of
conservative
validation.
Some
opinions
receive
cross-circuit
nods
because
they’re
cases
of
first
impression
or
examples
of
sterling
reasoning,
but
a
lot
of
them
show
up
because
“I’m
citing
my
buddy’s
opinion
because
we’re
both
trying
to
overrule
the
Clean
Air
Act.”
In
fact,
the
paper
notes
that
the
top
authors
for
outside
citations
both
wrote
gun
rights
opinions
—
the
overall
most
outside
cited
opinion
being
Rahimi
—
and
that
“[p]erhaps
it’s
not
the
judge
per
se
but
instead
the
random
chance
of
getting
assigned
to
write
an
opinion
on
such
a
hot-button
topic
that
drives
the
large
outside
circuit
citations.”
The
authors
are
on
to
something
here,
but
don’t
go
far
enough.
Circuits
don’t
need
to
look
beyond
their
borders
to
resolve
uncontroversial
issues.
That’s
where
circuit
splits
happen,
and
panels
will
flag
those
cases
when
adding
their
voices
to
one
side
or
the
other
of
that
split.
And,
not
to
get
too
philosophical,
but
a
“hot-button
topic”
can
be
self-fulfilling.
When
one
circuit
—
let’s
just
pick
a
number
at
random…
say,
the
Fifth
—
decides
to
turn
itself
into
a
constitutional
hot
take
generator,
it
manufactures
controversy.
Rahimi
got
a
lot
of
attention
because
it
was
so
uniquely
batshit
that
even
this
Supreme
Court
couldn’t
get
on
board.
The
model
for
an
influential
judge,
per
the
statistical
method
employed
by
the
authors,
would
be
Judge
Posner’s
1998-2000
run.
During
that
period,
Judge
Posner
was
“2.6
standard
deviations
above
the
mean
active
judge”
by
this
measure.
But
while
I’ll
subjectively
say
Judge
Posner’s
“judicial
performance”
was
several
more
standards
of
deviation
better
than
any
of
the
Trump
appellate
cohort,
this
influence
measure
isn’t
a
good
basis
for
that.
Because
this
measure
rewards
controversy,
higher
“influence”
will
always
benefit
judges
challenging
orthodoxy.
Judge
Posner
championed
viewing
the
law
through
a
then-novel
economic
lens.
The
Trump
judges
in
this
study
champion
viewing
the
law
through
a
presently
novel
“whatever
Trump
wants”
lens.
In
both
cases,
they’re
getting
cited
more
for
bucking
the
system.
This
measure
of
influence
captures
judges
writing
from
outside
the
established
legal
norms.
But
it’s
a
value
neutral
measure
because
it
doesn’t
matter
if
they’re
producing
law
and
economics
or
batshit.
If
anything,
all
we’ve
learned
here
is
that
Biden
judges
are
NOT
producing
opinions
hoping
to
advance
new
critical
race
theory
readings
of
ERISA,
but
are
mostly
straightforward
practitioners
guided
by
orthodox
interpretations
of
established
precedent.
Again,
we
don’t
actually
want
judges
to
be
influential
for
the
sake
of
being
influential
—
we
want
them
to
quickly
and
correctly
decide
cases.
Biden
judges
tend
to
be
in
line
with
existing
precedent?
Cool
story,
but
it
doesn’t
say
anything
about
their
performance.
The
paper’s
definition
of
independence
is
complicated
and
derived
through
multiple
equations,
but
at
the
end
of
the
day…
who
cares?
If
they’re
standing
up
to
injustice,
that’s
great.
If
they’re
obstinately
bloviating
against
established
law
for
their
own
ego,
that’s
not.
There’s
no
objective
measure
capable
of
capturing
that
distinction.
In
the
end,
the
measure
we
get
from
the
paper
is
the
same
productivity
problem
—
rewarding
dissents
and
concurrences
—
compounded
because
it
gives
extra
weight
to
dissents
and
concurrences
that
go
“against”
other
Republican
judges.
So
a
judge
wanting
to
force
in
their
own
“me
too”
concurrence
to
stay
on
Leonard
Leo’s
nice
list
gets
an
independence
boost
for
what’s
basically
the
judicial
equivalent
of
“I
have
more
of
a
comment
than
a
question.”
Which,
again,
says
nothing
about
whether
or
not
the
judge
is
doing
a
good
job
as
a
judge.
The
data
collected
in
the
paper
is
interesting.
There
are
reasons
why
it
might
be
interesting
to
know
who
is
writing
more
and
who
is
getting
cited
more.
But
neither
has
more
than
a
passing
connection
to
“judicial
performance.”
Someone
once
told
me
that
the
best
way
to
evaluate
a
methodology
is
to
forget
the
ideal
case
that
it
could
measure
and
instead
consider
what
it
would
look
like
to
game
it.
Applying
that
advice,
what
would
a
judge
do
if
they
wanted
to
be
crowned
a
high
judicial
performer
by
this
test?
Write
separately
in
every
case
and
make
sure
every
majority
opinion
is
tailored
toward
circuit
conflict.
This
study
is
what
happens
when
you
apply
quantitative
metrics
to
qualitative
judgments
without
thinking
about
what
you’re
actually
measuring.
For
example,
the
authors
said
they
intended
to
“get
a
conversation
going”
and
quantitatively
they
have
succeeded
in
creating
one.
Qualitatively,
they
have
created
a
stupid
one.