July 11th, 2012
With all respect to Clint Bolick, his WSJ piece yesterday seems conflicted at the end. In his close, Bolick writes,
[T]he science of nominating philosophically consistent justices has grown more precise. In the past, presidents from Abraham Lincoln to Franklin Roosevelt to Richard Nixon tried to pack the court with reliable fellow-thinkers, with decidedly mixed success. Dwight Eisenhower famously remarked that his two biggest mistakes both served on the Supreme Court (Earl Warren and William Brennan). John F. Kennedy appointed Byron White, who turned conservative toward the end of his tenure, and George H.W. Bush appointed David Souter, who was liberal from day one.
These days, however, justices are carefully chosen on the basis of long philosophical track records. Indeed, most Supreme Court justices today remain more true to their principles than the presidents who appoint them
A Republican president may spend like a drunken sailor or destroy capitalism in order to save it, and a Democrat may bail out Wall Street and fail to bring the troops home. But they will never disappoint their respective bases on Supreme Court nominations.
I’m not sure I’m convinced of this argument. In last week’s Newsletter, I did a quick count:
In the last 43 years, Democratic presidents have appointed only 4 justices (Kagan, Sotomayor, Breyer, and Ginsburg). They’ve all been reliably liberal, especially in important cases. Republican presidents, on the other hand, have made 12 appointments. Of them, a not insubstantial number were, to put it delicately, not reliably conservative. Blackmun, Stevens, and Souter were largely liberal. Powell and O’Connor were decidedly moderate. It wouldn’t be fair to lump Roberts in with either of these groups (not yet, anyway) (I kid!), but taking him out of the mix means that barely half of the Republican-appointed justices vote the ideological “party line” while all of the Democratic-appointed justices do.
If you go back another administration, Johnson appointed the reliably liberal Thurgood Marshall. (His other appointment, Abe Fortas, wasn’t with the Court long enough to really count for our purposes.) In fact, to find a Democratic-appointed justice who departed from party orthodoxy, you have to go all the way back to 1962 when JFK put Whizzer White on the Court.
Maybe the science has progressed over the last 40 years, but the case of John Roberts suggests that it hasn’t. Or at least not all that much. (Or perhaps, it has progressed for Democrats but not for Republicans.)
An interesting side question is whether or not Harriet Miers would have flipped and gone along with Roberts had she been on the court. It’s impossible to know, of course. But if, theoretically, she had then it would mean that W. would have gone 0-for-2. Or maybe, (0.5 + 0.5) for 2.
Does anyone really think that Mitt Romney would nominate more conservative SCOTUS justices than W. did? As Ben Domenech likes to say, the next pro-life judge Romney appoints will be his first.
Yes, yes, Obama would certainly nominate more liberal judges than Romney. But my point is that a Romney presidency doesn’t guarantee that we get conservative justices any more than the Reagan or Bush presidencies did. And probably a good deal less. The choice isn’t between getting liberal justices or conservative justices. It’s between getting liberal justices and (at best) an even-money chance at a conservative justice.
Update: Galley Friend M.F. writes in with some persuasive disagreement:
I, too, found the end of Bolick’s piece . . . incongruous, but a few friendly quibbles with your analysis.
(1) It’s very hard to compare GOP appointments and Dem appointments historically as modern “legal conservatism” as we know it really didn’t come about until after Roe v. Wade. So, for example, take Nixon.
Rehnquist was really the only one of his justices we would call a “conservative” in the true sense–and it bears noting that lots of legal conservatives never cared for him as he was a right-wing judge whose time on the Court predated and thus was not governed by “originalism” or any other consistent conservative methodology.* And yet when Nixon was putting people on the Court he was trying to correct Warren, Brennan, and Douglas on criminal procedure, antitrust, and busing.
I can’t speak reliably to busing, but as a rule Burger, Rehnquist, Powell, and Blackmun were pretty good (at least for a while) in letting Harry Callaghan off his leash and quite good in correcting course on antitrust (although that wouldn’t really come around until Bork, Posner, and Easterbrook changed all the terms of the discussion in the ’80s). O’Connor was pretty good by these standards, too. The trouble is Roe changed that as the litmus test. But even there, as Robby George likes to point out (and the language of Roe confirms it), square Republican Harry Blackmun thought he was writing a conservative decision–it was about professional prerogatives for physicians as written by the former GC of Mayo. (And his judicial “evolution” coincides interestingly with his post-Roe conversion from lame Republican Harry to the eminent Justice Blackmun, Jurisprude and Defender of Women.)
It took a little while to figure out how wrong Roe-like reasoning was, and that process happened to coincide with the ascendance of Scalia, Bork, Berger and the development of an authentically conservative farm team (under the leadership of Ed Meese or so seems to be the consensus) and the Federalist Society. So it wasn’t until the late 80s that you had any sort of institutionalized actual conservatism on the circuit courts from which to find SCOTUS picks. So while Reagan had to go to the Arizona Court of Appeals in 1981, any appointments between 1985 and 1992 had their picks of Scalia, Bork, D. Ginsburg, Starr, Santelle, Silberman, O’Scannlain, Scirica, Luttig, Wilkinson, Garza, Jones, Edmundson, etc. Reagan seems to have realized this since he only got to Kennedy after Bork and Ginsburg went down, and even Souter almost lost to Jones, which would have made things very different. It’s an imperfect but relatively young process that’s been getting better over time.
(2) Very droll by Ben Domenech, but I’ve never been sure why Romney appointing pro-aborts to the Massachusetts Court of Cow Probate for the West Southwestern Central Judicial and Gaming District mattered. He never got to nominate someone to the SJC and since most of the MassResistence/Jason Jones stuff involves non-policy-making courts (e.g. criminal trial courts) I have to assume he never nominated a pro-abort to a court that could develop questions of law because if he did, his pro-life Catholic opponents surely would have made everyone aware of it.
(3) While the choice is between certain regression with Obama and possible progress with Romney, I think that still understates things at the Supreme Court level. The simple fact is that it’s a closed universe. There is a finite number of papabile lawyers out there, almost all of whom are federal circuit judges, appointed by a Republican and under 55 (plus about five others). One can come up with a 90%+ complete list in 5 minutes. The beauty of the Bush years was not just that they got Roberts and Alito on the Court (whatever one thinks of the former now), but that the White House Counsel’s Office was sure to put in an excellent college of cardinals for next time.
No Romney critic I’ve talked to has been able to name any plausible bad nominees, let alone any plausible bad nominees that are worse than the best we would hope for from Obama (e.g. Denny Chin). The danger is the AAA team that will be set up for next time on the circuits by Romney, which needs to have a lot more women and minorities on it. Looking at who’s on Romney’s judicial advisory list I’m confident they’ll find the right people from underrepresented groups for that if they’re the ones staffing the White House. If it’s Boston Mafia, I’m somewhat less confident.
*Here, actually, is an underemarked comparison to Chief Justice Roberts. Rehnquist was famously hostile to Miranda, and when the opportunity finally came potentially to overturn it in 2000’s Dickerson v. U.S. he went with the liberals and wrote the opinion in such a way as to (a) make a constitutional hash of Miranda (it’s now a “constitutional rule” but not in the Constitution) and (b) make it as close to useless as he possibly could. People say Roberts was looking to Marbury with NFIB; I think he was looking to his old boss. Of course, Rehnquist would have struck down Obamacare root and branch, so . . .
The issue facing the Republicans in these nomination choices/battles is that the Democrats are willing to close ranks and form a battle line whenever they see their judicial interests seriously threatened.
Remember Robert Bork? Extremely qualified but openly conservative and he got crushed in part by Ted Kennedy committing one of the despicable acts on the Senate floor since the caning of Charles Sumner.
As a side note when I go to Arlington to pay my respects, I no longer go to JFK’s grave because of the presence of his brother who just wants to make me spit.
You know what though? Teddy’s ploy worked because Bork was ultimately replaced by that great balancer Anthony Kennedy and because of fears of nominating openly conservative minds we got the stealth candidate David Souter.
Think about that when people try to decipher why John Roberts flipped his vote – I know alot of Democrats around town who think it was in part because of the public political pressure applied to him. As Teddy showed, what works and is not immediately discredited is repeated