A big wind up but not much of a delivery: Response to Op-ed on Alito Nomination

Todd Zywicki had a nice post on my recent op-ed discussing whether Alito is an extremist

Todd goes on to note that Franks Cross criticizes my piece:
Professor Frank Cross challenges Lott's interpretation of Choi and Gulati in the Comments:

Perhaps unsurprisingly, this review by John Lott is quite misleading. Under Choi & Gulati's citation-based measure of judicial quality, Alito comes out very poorly, well down in the bottom half of all circuit court judges. That was their primary measure, and Lott doesn't mention it. Now, I've got a forthcoming paper that argues that this measure is an unreliable one and Alito suffers not for lack of quality but because it is a minimalist. But it's still misleading to cite a couple of categories where he does well but ignore their leading category, where he did quite poorly.

And independence in their study doesn't mean judicial independence, or anything like it. His high score here probably just means that 3rd Circuit Republicans are pretty liberal, as has been noted on this blog, so he is more likely to disagree with them and write a conservative opinion.

Personally though, after much back and forth between myself and Mr. Cross, Cross's discussion ends with more of a wimper than a bang:

. . . Perhaps I should give some context. I have the Choi &Gulati data and have analyzed it in various ways, as well as reading all the critics that I have found. I am famiiar the the findings and their validity. Because this is an area in which I research, I have fielded numerous inquiries about the Alito nomination. I have scrupulously avoided discussing the Choi &Gulati results because (a) I felt I could not do so honestly without addressing Alito's low quality rating in the process and (b) I think that rating is unfair to Alito for other reasons I have been researching. But I thought the full explanation was beyond what the press could reasonably offer in an article.

In short, I declined to make a post such as yours, because I believed it would be misleading to do so. This all happened before your post. Having made that conclusion for myself, I applied it to your post. Readers may draw their own conclusions.

My response is as follows:

. . . I haven't read your research, though I would be interested in doing so if you could email a copy (I would appreciate it). What I conclude from your last comments is that you were not taking issue with me inaccurately reporting what Choi and Gulati wrote, but your research has found that there were significant problems with their research and that without noting those problems it is wrong to cite the Choi and Gulati findings. Since I don't know your critique, I can't really comment on the last point other than to say I am very happy to look at your work.

I will look forward to reading his research when he sends it to me. I couldn't find it on SSRN. Possibly he has some strong critiques of Choi and Gulati, but despite the long discussion presented he never explicitly mentions what his objection is to Choi and Gulati's quality measures based upon citations and invocations (the later is when the name of a judge is mentioned in citing his opinion). I will reserve judgment until I have it to read, which hopefully will be very soon.


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