A new study conducted by Lee Epstein of Washington University and Eric Posner of Kirkland & Ellis analyzed nearly 100 years worth of Supreme Court decisions and found that President Obama had, by far, the worst “win rate” of any President in their data set, going back to FDR, and perhaps the worst since Zachary Taylor held the White House in 1850. With a win rate of just 50.5%, Obama fell well short of previous presidents in modern history that won nearly two-thirds of their cases.
To assess presidential performance in the U.S. Supreme Court, we created a dataset of cases of concern to the President. The dataset covers Presidents Franklin D. Roosevelt through Barack Obama (1932-2015 terms), which amounts to 84 Court terms and 13 Presidents.
Three findings emerge from the raw data.
a. Presidents prevailed in nearly two-thirds of their cases; and captured over 60% of all votes cast.
b. Obama’s win rate of just 50.5% is significantly lower than the average win rate and, in fact, the lowest in our dataset.
c. A few commentators have noticed Obama’s problems in the Court, attributing them to Obama himself. But because our data show a downward secular trend in presidential success ever since the Reagan years, it may be that the Obama administration is just the latest victim of a Court that has gradually been losing confidence in the executive branch.
“Obama’s performance was especially poor. He prevailed in just 50.5% of his cases—a percentage slightly lower than the states’ win rate while Obama was in office (55.4%). This is the worst record of any President in our dataset; and it may be the worst since the Zachary Taylor administration.”
And while the authors would like for you to believe that Obama’s shortcomings were just the result of a new “secular trend” of a Court “that has gradually been losing confidence in the executive branch,” we’re going to go out on a limb and suggest that perhaps Obama’s strategy of applying very loose interpretations of the Constitution to hammer his liberal agenda down the throats of the American public probably had something to do with his abysmal win rate.
Of course, all of this begs the question of who Trump will nominate to fill Justice Scalia’s vacant seat in the coming days/weeks. Back in November we posted a list of 21 potential candidates that Trump identified as likely choices (see “Trump Could Radically Transform The Supreme Court For Decades And Dems Are Terrified“), which, at least according to Axios, has since been narrowed down to the following three names:
William Pryor, 54, is an Alabama-based judge on the 11th U.S. Circuit Court of Appeals. He faced intense opposition to his nomination under Bush, but was confirmed 53-45.
Neil Gorsuch, 49, sits on the 10th U.S. Circuit Court of Appeals in Denver. Schumer voted for his confirmation back in 2007, and he has ties to Trump’s sister, Judge Maryanne Trump Barry.
Thomas Hardiman, 51, is a Pittsburgh-based judge on the 3rd U.S. Circuit Court of Appeals.
That said, per the Los Angeles Times, Neil M. Gorsuch, at this point, seems to a frontrunner in the Trump inner circle.
Judge Neil M. Gorsuch, a highly regarded conservative jurist best known for upholding religious liberty rights in the legal battles over Obamacare, has emerged as a leading contender for President Trump’s first Supreme Court nomination.
Gorsuch, 49, was among 21 potential high court candidates circulated by Trump’s team during the campaign, but his stock has been rising lately as several admirers and supporters have been named to positions in the Trump administration.
He currently serves on the U.S. 10th Circuit Court of Appeals in Denver. A former clerk for Justice Byron White, also a Colorado native, and Justice Anthony M. Kennedy, he served in the George W. Bush administration’s Justice Department.
In Gorsuch, supporters see a jurist who has strong academic credentials, a gift for clear writing and a devotion to deciding cases based on the original meaning of the Constitution and the text of statutes, as did the late Justice Antonin Scalia.
Just as importantly, Gorsuch is seen as someone who might be more easily confirmed in the Senate. Unlike other appointees of President George W. Bush, Gorsuch won an easy Senate confirmation on a voice vote in 2006.
But while Gorsuch may be one of the more “confirmable” names on Trump’s short list, with Democrats in the Senate looking to obstruct Republicans in every way possible, we suspect there is a long fight ahead for whomever the Trump administration ultimately chooses.
The full study can be viewed here:
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