Differences And Similarities Between Hansford And Sprigg

Written Assignment I

Allison DeHart

Question I

According to Woodward and Armstrong, stare decisis is “the principle that precedent governs, that the Court is a continuing body making law that does not change abruptly merely because justices are replaced” (4). Stare decisis is also the principle that judges should strive to not overturn precedent and to cite it positively, an idea which is explored in the Hansford and Spriggs (2006) article. In their study, Hansford and Spriggs define positive treatment as a justice using precedent to further their argument (or a justice adhering to stare decisis) and negative treatment as a justice ignoring precedent (JAS 20230202). A justice is more likely to treat an ideologically similar precedent

However, when a precedent is more vital, or when it has been cited positively repeatedly, this relationship changes (JAS 20230202). By comparing the treatments of vital precedents used by different justices and how the precedent relates to policy preferences, Hansford and Spriggs find that even as justices are more ideologically distant from a vital precedent, they will treat it as positively as they would a precedent that they are ideologically similar to (JAS 20230202). However, the study also finds that when a justice is ideologically distant from a high vitality precedent, they also are much more likely to treat it negatively than if they were ideologically similar to it (JAS 20230202). Ultimately, Hanford and Spriggs show that a justice can be limited by a vital precedent, being compelled to treat it positively, but that a justice can also be drawn to attack vital precedents that stand

For instance, modern presidents, including Trump and Biden, have been moving away from American Bar Association (ABA) ratings as a method of measuring qualifications because the ABA recommendations have been shown to be biased in ideology, sex, and race (JAS 20230207), though they still do look for highly legally and ethically competent candidates (JAS 20230207). Further, presidents have shifted away from trying to provide their constituents with representation on the court based on geography and religion, and focus instead on more politically salient identity characteristics, like race, gender, and ethnicity (JAS20230207). Overall, according to Nemacheck, there are two major factors that I, a modern president, ought to consider most seriously to limit my uncertainty when choosing a nominee: the nominee's future behavior on the bench and the likelihood of Senate confirmation (JAS 20230207). So, to ensure the nominee’s future behavior aligns with my goals, I will nominate someone who has a long judicial record by which I can determine their ideology and will privately confirm that their preferences match mine (JAS 20230207). To ensure that the nominee passes the Senate, I will ideally find someone whose public judicial record is uncontroversial and