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July 04, 2005


A superb and thoughtful post.

Of course, it presumes that the one's coming to the Court were willing to think and open to hearing new ideas.  Scalia's ideas have been fixed  at least since he went on Appellate Court and Thomas's refusal to engage during oral arguments seems to me to display an attitude of not wanting to confront ideas that might force him to chnage his thinking.

For far too many of those Bush ahs recently elevated to Circuit Court, I see similar patterns -- In Owen, in Brown, etc.  Yes, there are some like McConnell who might well fit the pattern you describe.  And although I would reject him because of his role in torture I would probably put Gonzales as a possible for that category.

I don't hold out high hopes for "growth" of the kind you describe for most of the people Bush would consider for SCOTUS

Stupid question, I guess, but can someone lay out more clearly what we mean when we talk about liberalism and conservatism when it comes to judges?

At first blush it seems to me it should not be the same criteria we use when talking about legislators (which labels anyway are becoming useless, as Republicans are pulled farther and farther from small-government reduced-spending conservatism).

From your post, scoring judges as liberal or conservative seems to hinge on their regard for personal liberties. Is that the appropriate criterion?

I think Owen and Brown stand out in part because they're probably outliers in the temperament category. I'm not saying Bush has been appointing stellar jurists, but those two and a few others are probably the worst of the batch.

I'm a bit familiar with the Michigan appointees, and for the most part they're of middling ability, not particularly crazy, but not very impressive.

emptypockets: you raise a good point. There are a ton of issues having to do with, for instance, the commerce clause, that should factor in to assessing a justice. My guess is that whatever happens, we're likely to have somebody appointed by Bush who will probably always remain hostile to organized labor. However, I focused more on social issues since they've become the main litmus test for the cultural right, have the greatest potential to get Bush stuck betwen what his business patrons want and what his activists want, and to turn the public against anyone he may appoint who appears likely to be a stuanch opponent of personal liberties.

I believe it is the business interests that will be the deciding factor, not the social ones. Whatever the Christian right may want, Bush has pretty much ignored them when it comes to actually governing, and consistently sided with the business interests. I think his SCOTUS appointee will follow this pattern, and will be someone socially right enough to be mostly acceptable to the Christian right as well. But I don't think they will get an anti-Roe ruling, because this would be the death knell of the Republican party. Whatever people say in public, nearly everyone knows someone or several someones who have had an abortion - friends, family, whatever. I know three people personally myself who have had one. So I think the Repubs are smart enough to avoid this.

Donna: I would generally agree with you, because that's certainly been the standard pattern for the GOP. But Bush, Rove, DeLay et al have all ramped up the expectations so high for the wingers that this may be the breaking point. Somebody on Daily Kos commented the other day that this may prove to be a really bad moment for Bush; they could be right. It's likely that they either pick somebody who can be confirmed without damage to their relations with business and the general electorate but piss off the wingers, or they pick somebody acceptable to the wingers with possible damage to the ties with business and the general electorate.

I honestly don't know what they're going to do.

I don't think Bush knows what he is going to do either. He either finds someone who is acceptable to the NAM and Dobson (probably a hard task) or, if he can't find one, he goes with Gonzales and just says ti the right "I wanted him and that's that." Reportedly he knows Roberts personally, so if he has confidence in him, he might be the one since his paper trail is thin (except in terms of cases he has argued, which I always find a problematic guide to a lawyer's real beliefs. He might also fit your bill.

Conservative and liberal can mean very different things. One axis is deference to the legislative branch vs constitutional activism. One axis is pro-business vs pro labor, consumer and environment. Pro-gov't vs pro plaintiff can be either, depending on the gov't in question and the likely plaintiffs. Traditionalists, who don't readily overturn precedent, used to be called conservatives, but we now see that as "liberal," because social conservatives and economic radicals want to overturn the last 70 years of precedents. More and more it just reflects the politics of the speaker.

mimikatz: you raised the issue of the National Association of Manufacturers, and being from Michigan, I view that as a really interesting angle. John Engler is their point person on judicial appointees, and he put some awful, awful people on the courts in Michigan; apparently a lot of legal scholars consider our current Supreme Court one of the worst in the country. The appelate level is a mess. They're almost all Federalist Society zealots.

BUT, Engler, despite being very conservative and being a true believer on abortion, he has enough political savvy to not pick certain fights. He opposed the DeVos crew--the Amway money people--when they pushed to put a voucher proposal on the ballot. Consistent with the heavly-Catholic Michigan Right to Life, he held the line on opposing the death penalty. And back in the mid 1990's, he pushed back and prevented an anti-gay measure from getting on the ballot. So one might think he would be a key person for the administration.

And maybe he will be. But one other important factor to remember, since Bush is so damn vindictive, is that Bush is apparently still pissed at Engler for taking too long to endorse him in 1999-2000, and then failing him in not preventing the embarassing spanking McCain gave him, and then not delivering the state that fall.

I think he will pick Luttig. Luttig is a major homophobe and anti-abortion, a Rove rubber stamp, he is a Scalia protege, he is seen as nonthreatening (the Democrats seemed far more upset about Owen or Brown than they were about Pryor, so I guess they will see Luttig in the same light).

The only other person I can see him picking is Cornyn.

My guess is Miguel Estrada. Care to bet?

I agree that any conservative with a genuine judicial temperament will prove highly unpredictable as the years and decades pass. That's why the nominee, whoever he or she is, will be a rigid and crazed ideologue like Scalia. Modern "conservatism" is long past regarding a judicial temperament as a virtue.

Another point is that, by all accounts, the kind of open debate and discussion among the justices that led to consensus in the past no longer happens. The justices are remarkably isolated from each other.

Excellent post, but I don't think Bush is looking for a 'conservative', he's looking for a partisan and looking to payback his base. He's not looking for any kind of judicial scholar, he's looking for someone who's young and will tow the line ala Thomas.
All this talk about consulting with Democrats is pure nonsense, it's depressing that the Democrats allow this charade to go on.


Just to add to your point about our Supreme Court and Circuit--I spent the weekend with a friend who has a 1 for 2 record arguing cases before Rehnquist's court, at age 42. He was joking that our fucked up courts have done wonders for his career, because so many screwy rulings come out of MI that an appellate lawyer from MI has a really good chance of getting his cases heard by SCOTUS.

FWIW, this friend thinks O'Connor's replacement will be Abu Gonazles.

So none of the justices are on friendly terms? Aside from Thomas/Rehnquist/Scalia, I would have thought the others would get along.

Great thoughts- simple explanation- thinking people eventually turn to liberal positions- it's one of the most heart-warming truisms and an eternal source of optimism.


Current "conservative" judicial philosophy reflects an awkward coalition of interests.

Look at the last round of appellate confirmations. You got Pryor, a religionist ... Owen, a corporate favoratist "third advocate in the courtroom" ... and Brown, a radical minarchist (who professes religion though many of her philosophical soul-mates swing militant atheist).

The tiny core Right has assembled a vast Coalition -- of the Willing, by the Willing and for the Willing. They are willing to play ball as long as they each get some of what they want.

And they have constructed, in the Federalist Society, a powerful vetting apparatus, where the Elect are groomed, vetted and validated from the teen years on up, without leaving many footprints in public places.

As to evolution on the bench, SCOTUS gets hard cases, or takes hard cases, or takes "easy" cases and find hard questions in them ... and continued exposure to hard cases has a way of abrading the sharp edges of ideological simplisme.

I'll take a different position. None of the GOP factions will stay "pissed" for long if they don't get what they want.

Because the admin will always say through outreach, "look, don't get mad, we delivered someone you'll like. Wait a few years and see. Meantime, stay with us, we've got elections coming up."

So maybe no damage in '06, but possibly religious backlash in '08, if that new appointees' record truly is disagreeable. But how likely is that? Will they walk because of a mixed record? If the new guy votes down, say, Roe for example, but votes up something else nice will the fundies really walk?

So in the end I'm predicting that this whole intellectual gymnastic effort won't effect the elections much at all. Not in '06. But maybe, only maybe '08, and possibly only if there's a challenge to Roe.

In general I just can't imagine anything more than a small fraction of Americans getting exorcised about the SC.

Superb and very welcome post. I've been thinking along these lines since the O'Connor announcement, so I really appreciate that you did the homework and explained it so clearly.

As to why Supreme Court judges can seem to become more liberal over time, my guess is that it has a lot to do with what you might call consistency. Or you might call it honest thinking, in that it has to do with self-awareness and introspection. Arrogant sophist Scalia spends his "thinking" time figuring out how to "justify" his existing opinions and never questions anything. A true jurist doesn't work that way.

So my deepest hope is that we get someone in there who will be able to look at himself in the mirror and say, "I am one person and I might be wrong," and know that it's a true statement. That may be our only hope.

Here's one other very simple possibility.

Perhaps people move left when they hit SCOTUS because toeing the conservative line is a highly unpleasant activity, which means people will stop doing so as soon as there is no more incentive to do so. Scalia is still toeing because he wants to be Chief. Can't explain Thomas though.

emptywheel: maybe a decent explanation for most. Maybe the explanation for the exceptions--Scalia and Thomas--is that rather than acting in a way they find unpleasant, they themselves simply are unpleasant.

It doesn't sound like, from what I've read, either of them are particularly well-liked.

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