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Professor Lisa McElroy Analyzes Obama's U.S. Court of Appeals Nominees in Georgetown Law Journal

Professor Lisa McElroy

December 19, 2013

Republican efforts to block President Obama's U.S. Court of Appeals D.C. Circuit judicial nominations may have been misplaced, Professor Lisa McElroy said in an article she wrote for the Georgetown Law Journal.  Party affiliation has a lesser affect on judicial outcomes than existing case law, which every judge must adhere to as part of taking an oath to "support and defend the Constitution," McElroy wrote.

McElroy analyzed 1009 merits opinions issued by the U.S. Court of Appeals D.C. Circuit over the past five years, finding that precedent consistently carries more clout than ideology. "To put it simply, a D.C. Circuit judge is no more or less likely to dissent from the majority opinion if he or she sits on an ideologically 'pure' or 'mixed' panel," McElroy argued.

McElroy did not discount that ideology will sometimes play a role.  However, "even in those cases, ones in which so-called experts claim they can predict the outcome with confidence, judges with a strong ideological bent may surprise them, just as the usually reliably conservative Chief Justice Roberts shocked the world with his vote in the health care cases in 2012 (basing his vote on a clause in the Constitution) and the almost always conservative Justice Scalia has surprised many with his votes in favor of criminal defendants over the years (again, basing his vote on the Constitution)," she concluded.