I Can’t Define Judiciousness,but I Know It when I Don’t See It

1. Assessing Views Toward Judges

Scholars have long characterized Supreme Court confirmations as involving “political and legal contexts in which the transition from the politics of acquiescence to the politics of confrontation has taken place” (Silverstein, 1994, p. 4). This contentiousness has spread to lower federal court nominations, with Whittington (2018) observing, “[s]ince the late 1990s, the odds of a circuit court nomination being confirmed have been little better than a coin flip” (p. 525). The relative impact of political and legal forces shapes much of the debate in the scholarship of judicial nominations and confirmations (Armaly, 2018; Badas & Stauffer, 2018; Carrington & French, 2021; Gimpel & Ringel, 1995; Gimpel & Wolpert, 1995, 1996; Kaslovsky et al., 2021; Krewson & Schroedel, 2020; Ono & Zilis, 2022, 2023; Rogowski & Stone, 2021; Vining & Bitecofer, 2023).

Gibson and Caldeira (2009a) stress that a key component of modern judicial confirmation strategy is “how public opinion will be managed and manipulated” (p. 1). In the context of Supreme Court confirmations, they note that the use of “judicial symbols” or “legitimizing symbols” is prevalent in efforts to frame public opinion (Gibson & Caldeira, 2009a, pp. 7–8). They offer the term judiciousness to encompass the legal factors prevalent in political science discussions of the framing of judicial nominees (Gibson and Caldeira (2009a, 2009b). ¹ Their analysis of Samuel Alito’s nomination to the Supreme Court distinguished between ideological or partisan (political) frames and judiciousness (legal) frames as a means of understanding judicial confirmations (Gibson & Caldeira, 2009b). Subsequent scholarly work implicitly or explicitly employs the distinctions between the ideology/partisan factors and legalistic expectations/judiciousness factors that shape perceptions of judicial nominees. Regardless of how various authors define judiciousness, there is strong, but not universal, consensus that the ideology/partisan frame is separate from the legalistic/judiciousness frame (Chen & Bryan, 2018, 2021; Gibson & Caldeira, 2009a, 2009b; Hoekstra & LaRowe, 2013; Krewson & Owens, 2021, 2022; Krewson & Schroedel, 2020; but see Rivero & Stone, 2025; Rogowski & Stone, 2021). We review the various approaches to the ideological/partisan frame and the judiciousness/legal frame in the sections that follow, consider arguments that the two frames may not be distinct, and propose an additional frame that captures injudiciousness.

2. Design and Expectations

Lower federal court judges, particularly those on the U.S. Courts of Appeals, have substantial impact on the American legal system. The Supreme Court grants certiorari in fewer than 100 cases a year, thus, the U.S. Courts of Appeals are the de facto court of last resort for the vast majority of cases in the federal system. The nomination and confirmation process for lower courts has followed the trends observed in the Supreme Court process. This includes prioritizing ideology in lower court nominees (e.g., Epstein et al., 2006; Goldman, 1997; Norris, 2020) and greater scrutiny of these nominees by the Senate (Binder & Maltzman, 2009; Hartley & Holmes, 2002). Subsequently, this has led to more contentious hearings (Dancey et al., 2020; King et al., 2022; Steigerwalt, 2010; Whittington, 2018) as well as increased attention from interest groups (e.g., Scherer et al., 2008) and the president (e.g., Holmes, 2008). Lower court nominees receive some attention (e.g., Herlihy & Nelson, 2025; Hoekstra & LaRowe, 2013), but, given the changing dynamic in lower court nominations and confirmations, there is value in developing a greater understanding of public evaluations of nominees to the lower courts.

We employ a conjoint experiment in which participants are provided profiles that display eight attributes regarding potential nominees to the U.S. Court of Appeals. ³ This type of experiment has proven valuable in the judicial nomination literature (Badas & Stauffer, 2019; Krewson & Owens, 2021, 2022; Ono & Zilis, 2022, 2023; Sen, 2017). An example of a profile for a hypothetical nominee appears in Figure 1. ⁴ OPEN IN VIEWER

Participants were provided with language that described the nomination and confirmation process and asked to evaluate hypothetical nominees. ⁵ They then viewed a profile of each nominee that included four types of information. Consistent with other studies, we provided demographic information (race, age, and gender) about the nominee. ⁶ Other information reflects the contrasting frames of ideology, typically deployed by opponents, and judiciousness, an approach used by supporters. To indicate ideology, participants were told whether the nominee was conservative, moderate, or liberal. Participants were also given multiple indicators of judiciousness. The most consistent approach to judiciousness relies on concrete measures of a nominee’s qualifications. Thus, we included law school, rank in law school class, and prior judicial experience. We approached temperament and role orientation by providing descriptions of behaviors attributed to the nominee. These behaviors are described in more detail below.

We developed a list of plausible and behaviors that might receive media attention and embed these in a section of the profile called “Most Recent Newspaper Story.” The treatments appear in Table 1. ⁷ The baseline for judiciousness is a fundamental judicial activity–the act of presiding over a high-profile case. We include four other stories in the judiciousness category. All four stories describe ethically permissible behavior, but two stories highlight behavior that may divide public reaction: the nominee’s spouse giving a speech at a legal advocacy group and the nominee running a Twitter account for their dog. These stories reflect two issues that have gained national attention. Justice Clarence Thomas and his wife, Ginni Thomas, received scrutiny because of her activism in conservative political and legal circles (e.g., Boburg & Brown, 2023; Brown et al., 2023; Kroll & Surgey, 2024). The nominee who runs a Twitter account for their dog reflects a general trend related to social media engagement by judges (e.g., Browning, 2021; Gray, 2016; Wegman, 2014).

OPEN IN VIEWER

Table 1.

Attribute Values for Judicial Behavior

Judiciousness:	Injudiciousness/Off-bench:	Injudiciousness/On-bench:
Ongoing coverage of a high-profile court case	Cited for public intoxication at a restaurant while on vacation	Hosted holiday party where alcohol was served in the courtroom
Gave a commencement address at their undergraduate alma mater	Video of them yelling at store clerk was shared on social media	Yelled at an attorney appearing before them in court
Ribbon cutting ceremony at new courthouse	Spouse filed for divorce alleging nominee’s involvement in an extramarital affair	Romantically involved with a subordinate who works with them in court
Spouse spoke at fundraiser for legal advocacy group	Old Facebook posts that used racial stereotypes surface	Told a joke that relied on racial stereotypes in courtroom
Runs a Twitter account for their dog	Investigated for inflating asset information on mortgage application	Heard case involving a company where their sibling is on the board of directors

We also include stories that allude to injudicious behavior. As noted by Gibson and Caldeira (2009b), opponents of a nominee may employ allegations of injudicious behavior as a substitute for partisan or ideological disagreement (p. 143). But as legal scholars note, if judiciousness focuses on the integrity and propriety of judges, it is easier to identify when it is lacking or missing (Gerhardt, 2005, p. 1207). Even if allegations of injudicious behavior are driven by ideological or partisan motivations, the allegations may play an independent role in shaping perceptions of nominees. We explore an injudiciousness frame by introducing five areas in which unethical conduct may occur: alcohol consumption, ill temperament, sexual relationships, racial hostility, and financial matters. Each behavior is presented in an on- and off-the-bench context to vary its seriousness.

Respondents evaluated each nominee profile on three criteria, including degree of support for the nominee, level of trust in the nominee’s ability to reach impartial decisions, and perceived level of qualifications (Kaslovsky et al., 2021, p. 589). Participants used a five-point scale for each criterion.

3. Estimating Support for Hypothetical U.S. Courts of Appeals Nominees

The experiment launched on the CloudResearch platform in August 2023. The 1,000 survey participants were restricted to U.S. citizens and matched to census categories on race, gender, age, and ethnicity. ⁹ Each respondent self-reported ideology on a seven-point scale: extremely conservative, conservative, slightly conservative, moderate or middle of the road, slightly liberal, liberal, or extremely liberal. ¹⁰ Each participant viewed profiles of attributes for eight hypothetical nominees, offering the opportunity for a maximum of 8,000 responses on each of the three assessment criteria (support, trust, and qualifications). ¹¹ The results for all three assessment criteria are quite similar, therefore we restrict our discussion to support for the nominee. ¹² Participants rated each hypothetical nominee on a scale of 1 to 5 from strongly oppose to strongly support.

We turn our attention to the factors of primary interest: distinguishing injudiciousness from judiciousness and ideology. ¹³ Figure 2 illustrates the results of three models that isolate each ideological group in order to assess their ability to distinguish injudicious behavior from judicious behavior, their sensitivity to the type of alleged behavior relative to other behaviors, and the impact of injudicious behavior relative to ideological differences.OPEN IN VIEWER

Consistent with our expectation that ideological alignment will drive responses, liberals, moderates, and conservatives express higher support for nominees who are co-ideologues and lower support for nominees outside their ideological group. Moreover, among liberals and conservatives, the magnitude of the negative response to cross-ideologues is substantially larger than the magnitude of the positive response to co-ideologues. Reliance on the ideological frame during the confirmation process can motivate those inclined to support, but it can have an even larger impact on those inclined to oppose.

Using presiding over a high-profile case as the baseline, we find little evidence that support for a nominee is sensitive to other behaviors that are ethically permissible, even those that may divide public reaction. This finding holds regardless of participant ideology except for the weak negative result among conservatives for a Twitter account for a dog. In contrast, all ten news stories indicating injudiciousness significantly reduce support for nominees regardless of participant ideology. Notable differences in sensitivity to the types of injudicious behavior emerge among the three ideological groups. ¹⁴

Conservative respondents demonstrate lower support for nominees associated with any behavior that indicates injudiciousness. The magnitude of the sanction is similar across all ten behaviors. Among moderates, some behaviors are more damaging than others. A nominee who has yelled at an attorney receives a statistically significant but relatively small reduction in support. Moderates sanction racial stereotypes so severely that support for those judges is significantly lower than support for the yelling judge.

Liberal respondents also show sensitivity to the type of injudicious behavior. A courtroom party with alcohol or yelling at an attorney carry small sanctions. In contrast, allegations of a romance with a subordinate, a temper flare-up with a store clerk, and both ways of employing racial stereotypes have large negative effects on support. Moreover, the sanctions are large enough to be significantly larger than the sanctions associated with courtroom parties and yelling at an attorney.

As noted above, the ideological frame shapes support for nominees, with greater costs associated with being a cross-ideologue than benefits for being a co-ideologue. Among conservatives, the effects of all forms of injudicious behavior are the same as the effects of being a liberal nominee. For conservatives, a liberal nominee with no allegations of injudiciousness and a moderate nominee with any allegations of unethical behavior are equally undeserving of support. For moderates, the injudiciousness frame is important. Sanctions for most types of injudicious behavior are greater than the sanction for being a liberal or conservative. Among liberals, the ideological frame generally mirrors that of conservatives. Liberals respond to some items within the injudiciousness frame even more critically than they respond to conservative nominees. Sanctions for allegations of a workplace romance, yelling at a clerk, or embracing racist stereotypes are larger than the sanction for being a conservative nominee. A moderate who commits any of these four kinds of injudiciousness is less worthy of support than a conservative. Conversely, a moderate who has an affair (or commits any of the other remaining acts) earns as much support as a judicious conservative nominee.

The separate model estimations for each ideological group that are portrayed in Figure 2 demonstrate the importance of both the ideological frame and the injudiciousness frame. Each ideological group prefers co-ideologues and punishes cross-ideologues. Each ideological group recognizes and sanctions injudiciousness. Among moderates and liberals, some allegations of injudiciousness are even more potent than ideological differences.

4. Discussion and Conclusions

This research reinforces existing knowledge and presents new findings regarding the factors that shape public assessments of judicial nominees. Consistent with previous scholarship, the ideological frame is an important part of nominee assessment. Members of ideological groups assess those who share their ideology positively and those from other ideological groups negatively. We find little evidence that many of the traditionally employed concrete markers of judiciousness, such as education and prior experience, shape support. We offer new insight into the public’s ability to recognize and sanction injudicious behavior. When presented with descriptions of actions that suggest bias or poor temperament, the public successfully distinguishes these behaviors from the baseline of presiding over a high-profile case. All variables reflecting injudiciousness are negatively signed and statistically significant across all three ideological groups. These results indicate the presence of a third frame for understanding the public’s assessments of court nominees.

Conservatives consistently provide less support for potential nominees with ethics allegations, but they do not distinguish among any of these behaviors. Moderates sanction all types of injudicious behavior but are most sensitive to stories that invoke racist stereotypes. Liberals sanction several types of injudiciousness more severely than yelling at an attorney but sanction racial stereotyping most severely of all. Ideology clearly shapes individuals’ perceptions of injudiciousness. This echoes findings in the broader scandal literature demonstrating that responses to different types of scandal are conditioned by respondent ideology (Saxton and Barnes, 2022a, 2022b).

Further evidence that ideology shapes responses to judiciousness emerges when contrasting across ideological groups rather than within them. Differences in the severity of sanctions emerge between liberal and conservative respondents when examining stories that involve racial stereotypes. Not all the differences, however, reflect a liberal-conservative divide; moderates and liberals respond to subordinate romance allegations differently.

The findings regarding co-ideologues lend support to the argument that hypocrisy or actions counter to a respondent’s partisan or ideological values are punished more severely (Bhatti et al., 2013; McDermott et al., 2015). There is a general trend of a greater reduction in support for co-ideologues compared to cross-ideologues across all stories of injudicious behavior. Future research is needed to understand why some behaviors result in greater sanctions for co-ideologues.

Judiciousness and ideology are key to understanding the frames that public receives and uses to assess nominees. In the contentious politics surrounding federal judicial nominations, supporters emphasize judiciousness by focusing on a nominee’s education and professional experience. They also stress that the nominee possesses the professional integrity necessary to hold a lifetime judgeship, often relying on the more abstract ideas of judiciousness such as temperament, fairness, and commitment to judicial norms. Our results demonstrate that public support for nominees is partly determined by judiciousness, whether it is signaled by experience, education, or ethically permissible behaviors.

Opponents of a nominee may have a more difficult time framing educational and professional factors in a negative light. Relying on an ideological frame to discredit a nominee is an effective strategy. Opponents can further weaken support for a nominee by employing an injudiciousness frame, claiming that behavior in the nominee’s past behavior is evidence that a nominee lacks temperament or professional integrity. Allegations of sexual assault, sexual harassment, suspect financial arrangements, disregard for the law, and treatment of those less powerful have emerged in judicial confirmation hearings at all levels of the federal judiciary. The public’s ability to recognize and sanction alleged injudicious behavior is evident, although the sanctions for specific allegations differ across ideologies. While our study focuses on hypothetical nominees, the results underscore the political potency of such allegations. Future research should further consider the implications, for individual judges and entire federal judiciary, of ignoring or politicalizing allegations of unethical behavior during judicial selection and confirmation.

Supplemental Material