{"id":136817,"date":"2025-11-12T21:59:26","date_gmt":"2025-11-13T05:59:26","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/11\/12\/trump-judges-dominate-biden-judges-in-performance-says-study-confusing-narcissism-with-merit\/"},"modified":"2025-11-12T21:59:26","modified_gmt":"2025-11-13T05:59:26","slug":"trump-judges-dominate-biden-judges-in-performance-says-study-confusing-narcissism-with-merit","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/11\/12\/trump-judges-dominate-biden-judges-in-performance-says-study-confusing-narcissism-with-merit\/","title":{"rendered":"Trump Judges \u2018Dominate\u2019 Biden Judges In Performance Says Study Confusing Narcissism With Merit"},"content":{"rendered":"

\u201cOur short answer is that Trump judges continue to dominate the Biden judges,\u201d write professors Stephen Choi and Mitu Gulati in a new preliminary draft article<\/a> posted yesterday. As a provocative tagline, it accomplished its task, getting pulled into social media posts viewed by tens of thousands. It\u2019s 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.<\/p>\n

This paper follows an earlier work comparing Trump\u2019s first-term judges to Bush and Obama judges based on \u201cproductivity, quality and independence,\u201d and concluding that Trump\u2019s nominees \u201cperformed as well, if not better.\u201d 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 \u201cas well, if not better,\u201d this time the Trump judges \u201cdominate\u201d Biden\u2019s. <\/p>\n

It\u2019s a Jordan vs. LeBron<\/em> level argument elevated to academia. The authors admit the paper is intended merely to \u201cget a conversation going about judicial performance based on objective data as opposed to more subjective assertions about judicial quality,\u201d a display of modesty violently at odds with the decision to use a word like \u201cdominate.\u201d But sometimes you\u2019ve got to channel your inner Stephen A. Smith to get traction. <\/p>\n

\n

To measure productivity, we start with the total number of reported opinions by a judge: the sum of majority, concurring, and dissenting opinions.<\/p>\n<\/blockquote>\n

Judges aren\u2019t paid by the word. The only opinion that needs to be written is the majority opinion. Dissents \u2014 and definitely concurrences \u2014 are gratuitous. \u201cWriting a dissent or concurrence is voluntary and takes extra effort,\u201d the authors note, mistaking \u201ceffort\u201d with \u201cproductive effort.\u201d Unnecessary work isn\u2019t a measure of \u201cproductivity,\u201d it\u2019s a measure of a busybody. <\/p>\n

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<\/em> the process of clearing the docket, both by (a) wasting limited time and resources producing opinions that don\u2019t 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\u2019s not to suggest dissents and concurrences are a universal wastes of time, but suggesting that judges are more \u201cproductive\u201d simply by writing more opinions is like rewarding the player who took the most shots even if every one missed.<\/p>\n

Unlike trial judges working alone, there\u2019s 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 \u201cproductive,\u201d but they\u2019re not talking.<\/p>\n

It\u2019s not hard to grasp why Trump judges excel under a measure of pure volume, consequence to the actual decision be damned<\/em>. The Federalist Society (note that FedSoc will say it\u2019s just a humble academic club and that it\u2019s 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<\/em> to keep their tenure portfolio padded in case the Supreme Court opens up. Democrats don\u2019t pick judges this way and Bush judges are now too old to get called up to the majors. <\/p>\n

\n

Our measure of judicial influence focuses on the number of outside circuit case citations a judge\u2019s authored majority opinion receives.<\/p>\n<\/blockquote>\n

Behold the self-licking ice cream cone of conservative validation. Some opinions receive cross-circuit nods because they\u2019re cases of first impression or examples of sterling reasoning, but a lot of them show up because \u201cI\u2019m citing my buddy\u2019s opinion because we\u2019re both trying to overrule the Clean Air Act.\u201d <\/p>\n

In fact, the paper notes that the top authors for outside citations both wrote gun rights opinions \u2014 the overall most outside cited opinion being Rahimi<\/em> \u2014 and that \u201c[p]erhaps it\u2019s 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.\u201d The authors are on to something here, but don\u2019t go far enough. Circuits don\u2019t need to look beyond their borders to resolve uncontroversial issues. That\u2019s where circuit splits happen, and panels will flag those cases when adding their voices to one side or the other of that split. <\/p>\n

And, not to get too philosophical, but a \u201chot-button topic\u201d can be self-fulfilling. When one circuit \u2014 let\u2019s just pick a number at random\u2026 say, the Fifth \u2014 decides to turn itself into a constitutional hot take generator, it manufactures controversy. Rahimi<\/em> got a lot of attention because it was so uniquely batshit that even this Supreme Court couldn\u2019t get on board.<\/p>\n

The model for an influential judge, per the statistical method employed by the authors, would be Judge Posner\u2019s 1998-2000 run. During that period, Judge Posner was \u201c2.6 standard deviations above the mean active judge\u201d by this measure. But while I\u2019ll subjectively say Judge Posner\u2019s \u201cjudicial performance\u201d was several more standards of deviation better than any of the Trump appellate cohort, this influence measure isn\u2019t a good basis for that. <\/p>\n

Because this measure rewards controversy, higher \u201cinfluence\u201d 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 \u201cwhatever Trump wants\u201d lens. In both cases, they\u2019re getting cited more for bucking the system. This measure of influence captures judges writing from outside the established legal norms. But it\u2019s a value neutral measure because it doesn\u2019t matter if they\u2019re producing law and economics or batshit. <\/p>\n

If anything, all we\u2019ve 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. <\/p>\n

Again, we don\u2019t actually want judges to be influential for the sake of being influential \u2014 we want them to quickly and correctly decide cases. Biden judges tend to be in line with existing precedent? Cool story, but it doesn\u2019t say anything about their performance.<\/p>\n

The paper\u2019s definition of independence is complicated and derived through multiple equations, but at the end of the day\u2026 who cares? If they\u2019re standing up to injustice, that\u2019s great. If they\u2019re obstinately bloviating against established law for their own ego, that\u2019s not. There\u2019s no objective measure capable of capturing that distinction. <\/p>\n

In the end, the measure we get from the paper is the same productivity problem \u2014 rewarding dissents and concurrences \u2014 compounded because it gives extra weight to dissents and concurrences that go \u201cagainst\u201d other Republican judges. So a judge wanting to force in their own \u201cme too\u201d concurrence to stay on Leonard Leo\u2019s nice list gets an independence boost for what\u2019s basically the judicial equivalent of \u201cI have more of a comment than a question.\u201d<\/p>\n

Which, again, says nothing about whether or not the judge is doing a good job as a judge<\/em>. 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 \u201cjudicial performance.\u201d 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. <\/p>\n

This study is what happens when you apply quantitative metrics to qualitative judgments without thinking about what you\u2019re actually measuring. For example, the authors said they intended to \u201cget a conversation going\u201d and quantitatively they have succeeded in creating one. Qualitatively, they have created a stupid one. <\/p>\n

The post Trump Judges \u2018Dominate\u2019 Biden Judges In Performance Says Study Confusing Narcissism With Merit<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\u201cOur short answer is that Trump judges continue to dominate the Biden judges,\u201d write professors Stephen Choi and Mitu Gulati in a new preliminary draft article<\/a> posted yesterday. As a provocative tagline, it accomplished its task, getting pulled into social media posts viewed by tens of thousands. It\u2019s 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.<\/p>\n

This paper follows an earlier work comparing Trump\u2019s first-term judges to Bush and Obama judges based on \u201cproductivity, quality and independence,\u201d and concluding that Trump\u2019s nominees \u201cperformed as well, if not better.\u201d 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 \u201cas well, if not better,\u201d this time the Trump judges \u201cdominate\u201d Biden\u2019s. <\/p>\n

It\u2019s a Jordan vs. LeBron<\/em> level argument elevated to academia. The authors admit the paper is intended merely to \u201cget a conversation going about judicial performance based on objective data as opposed to more subjective assertions about judicial quality,\u201d a display of modesty violently at odds with the decision to use a word like \u201cdominate.\u201d But sometimes you\u2019ve got to channel your inner Stephen A. Smith to get traction. <\/p>\n

\n

To measure productivity, we start with the total number of reported opinions by a judge: the sum of majority, concurring, and dissenting opinions.<\/p>\n<\/blockquote>\n

Judges aren\u2019t paid by the word. The only opinion that needs to be written is the majority opinion. Dissents \u2014 and definitely concurrences \u2014 are gratuitous. \u201cWriting a dissent or concurrence is voluntary and takes extra effort,\u201d the authors note, mistaking \u201ceffort\u201d with \u201cproductive effort.\u201d Unnecessary work isn\u2019t a measure of \u201cproductivity,\u201d it\u2019s a measure of a busybody. <\/p>\n

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<\/em> the process of clearing the docket, both by (a) wasting limited time and resources producing opinions that don\u2019t 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\u2019s not to suggest dissents and concurrences are a universal wastes of time, but suggesting that judges are more \u201cproductive\u201d simply by writing more opinions is like rewarding the player who took the most shots even if every one missed.<\/p>\n

Unlike trial judges working alone, there\u2019s 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 \u201cproductive,\u201d but they\u2019re not talking.<\/p>\n

It\u2019s not hard to grasp why Trump judges excel under a measure of pure volume, consequence to the actual decision be damned<\/em>. The Federalist Society (note that FedSoc will say it\u2019s just a humble academic club and that it\u2019s 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<\/em> to keep their tenure portfolio padded in case the Supreme Court opens up. Democrats don\u2019t pick judges this way and Bush judges are now too old to get called up to the majors. <\/p>\n

\n

Our measure of judicial influence focuses on the number of outside circuit case citations a judge\u2019s authored majority opinion receives.<\/p>\n<\/blockquote>\n

Behold the self-licking ice cream cone of conservative validation. Some opinions receive cross-circuit nods because they\u2019re cases of first impression or examples of sterling reasoning, but a lot of them show up because \u201cI\u2019m citing my buddy\u2019s opinion because we\u2019re both trying to overrule the Clean Air Act.\u201d <\/p>\n

In fact, the paper notes that the top authors for outside citations both wrote gun rights opinions \u2014 the overall most outside cited opinion being Rahimi<\/em> \u2014 and that \u201c[p]erhaps it\u2019s 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.\u201d The authors are on to something here, but don\u2019t go far enough. Circuits don\u2019t need to look beyond their borders to resolve uncontroversial issues. That\u2019s where circuit splits happen, and panels will flag those cases when adding their voices to one side or the other of that split. <\/p>\n

And, not to get too philosophical, but a \u201chot-button topic\u201d can be self-fulfilling. When one circuit \u2014 let\u2019s just pick a number at random\u2026 say, the Fifth \u2014 decides to turn itself into a constitutional hot take generator, it manufactures controversy. Rahimi<\/em> got a lot of attention because it was so uniquely batshit that even this Supreme Court couldn\u2019t get on board.<\/p>\n

The model for an influential judge, per the statistical method employed by the authors, would be Judge Posner\u2019s 1998-2000 run. During that period, Judge Posner was \u201c2.6 standard deviations above the mean active judge\u201d by this measure. But while I\u2019ll subjectively say Judge Posner\u2019s \u201cjudicial performance\u201d was several more standards of deviation better than any of the Trump appellate cohort, this influence measure isn\u2019t a good basis for that. <\/p>\n

Because this measure rewards controversy, higher \u201cinfluence\u201d 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 \u201cwhatever Trump wants\u201d lens. In both cases, they\u2019re getting cited more for bucking the system. This measure of influence captures judges writing from outside the established legal norms. But it\u2019s a value neutral measure because it doesn\u2019t matter if they\u2019re producing law and economics or batshit. <\/p>\n

If anything, all we\u2019ve 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. <\/p>\n

Again, we don\u2019t actually want judges to be influential for the sake of being influential \u2014 we want them to quickly and correctly decide cases. Biden judges tend to be in line with existing precedent? Cool story, but it doesn\u2019t say anything about their performance.<\/p>\n

The paper\u2019s definition of independence is complicated and derived through multiple equations, but at the end of the day\u2026 who cares? If they\u2019re standing up to injustice, that\u2019s great. If they\u2019re obstinately bloviating against established law for their own ego, that\u2019s not. There\u2019s no objective measure capable of capturing that distinction. <\/p>\n

In the end, the measure we get from the paper is the same productivity problem \u2014 rewarding dissents and concurrences \u2014 compounded because it gives extra weight to dissents and concurrences that go \u201cagainst\u201d other Republican judges. So a judge wanting to force in their own \u201cme too\u201d concurrence to stay on Leonard Leo\u2019s nice list gets an independence boost for what\u2019s basically the judicial equivalent of \u201cI have more of a comment than a question.\u201d<\/p>\n

Which, again, says nothing about whether or not the judge is doing a good job as a judge<\/em>. 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 \u201cjudicial performance.\u201d 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. <\/p>\n

This study is what happens when you apply quantitative metrics to qualitative judgments without thinking about what you\u2019re actually measuring. For example, the authors said they intended to \u201cget a conversation going\u201d and quantitatively they have succeeded in creating one. Qualitatively, they have created a stupid one. <\/p>\n

The post Trump Judges \u2018Dominate\u2019 Biden Judges In Performance Says Study Confusing Narcissism With Merit<\/a> appeared first on Above the Law<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

\u201cOur short answer is that Trump judges continue to dominate the Biden judges,\u201d 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\u2019s also fitting that the piece got boiled […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-136817","post","type-post","status-publish","format-standard","hentry","category-above_the_law"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/136817","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=136817"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/136817\/revisions"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=136817"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=136817"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=136817"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}