Want A Make a Conservative a Liberal? Appoint Him to the Supreme Court

By DHinMI

Long before Sandra Day O’Connor announced her retirement, one of the rallying issues for the cultural right wing was to do whatever possible to ensure that George W. Bush pick a “reliable” conservative who would strike down the decisions supported by apostate conservative Republican appointees like Anthony Kennedy, John Paul Stevens, David Souter and O’Connor herself. The rightwing is obsessed by the idea that Republican Presidents have muffed their Supreme Court appointments by picking people who weren’t really conservative, but who “concealed” their true beliefs until, safely ensconced on the Supreme Court for life, they wage war on mom, apple pie, unborn children and “sexual relations as God intended.”

There’s a problem with the theory, however. It’s not wrong in every instance; it seems pretty clear that the first Bush administration had no clue as to who David Souter really was or what kind of Justice he would be; it’s hard to say he changed once he got on the Supreme Court, because until he was on the Supreme Court he was a public blank slate. But in general, the problem (from the perspective of cultural conservatives) isn’t that the picks of Republican Presidents haven’t been conservatives. The problem that faces conservatives is that being on the Supreme Court makes almost everyone more liberal.

First, lets dispense with the two exceptions to my theory: Antonin Scalia and Clarence Thomas. Scalia, despite his pontificating about original intent, is really just a sophist who bends his decisions to fit whatever is the prevailing view on the political right. And Thomas came to the bench as a mediocre jurist without a well-formed theory or approach to jurisprudence. In each case the reason they’ve remained as conservative as they were when they came to the bench is that they’re both utterly lacking in a proper judicial temperament. Scalia is haughty and arrogant, and increasingly prone to nasty dissents delivered orally from the bench on the release of opinions with which he disagrees. And Thomas was revealed unsuitable for the bench during a largely forgotten exchange during his confirmation hearings. It was the day that the Anita Hill story broke, during a lunch break, and on the resumption of the hearing Thomas delivered an angry rebuttal to the claims he believed had been leveled against him. The recently deceased former Democratic Senator from Alabama, Howell Heflin, asked Thomas if he had even read the accusations. Thomas admitted he hadn’t, which prompted Heflin to ask the rhetorical question of Thomas, don’t you think that points to a problem of judicial temperament? It does, almost 15 years later, I still find it the most damning comment made against Thomas.

But for the rest of the Republican-appointed Justices, being on the Supreme Court and possessing a judicial temperament seems to have made them more liberal, especially on issues related to diversity and pluralism. Let’s look at each of the Republican appointees since the end of the Truman administration (year of appointment in parentheses):

John Harlan Marshal II (1955): Can’t easily be characterized either a liberal or conservative, but in contrast to “such current Justices as Antonin Scalia and Clarence Thomas, he eschewed originalism and textualism; in keeping with this "common-law" style of constitutional interpretation, he favored standards over rules, since the former were better able to adjust to changing conditions.”

William J. Brennan, Jr. (1956): Considered one of the court’s great liberals, generally portrayed by conservatives as the poster child of liberal judicial activism. He’s probably the only clear example of, from the perspective of conservatives, an obviously “bad” appointment.

Charles Evans Whittaker (1957): Don’t know anything about him, and couldn’t find anything quickly; he only served five years before retiring.

Potter Stewart (1958): In 1965 Stewart dissented in Griswold v. Connecticut, which established a right to privacy in a case concerning the sale of contraceptives.  However, by 1973 he had accepted the validity of the right to privacy, and voted with the majority in Roe v. Wade. 

Warren E. Burger [Appointed Directly to Chief Justice] (1969): Burger was a vocal critic of Earl Warren and pledged to be a strict constructionalist, but once on the court he shifted, supporting Roe v. Wade and largely putting a brake on the expansion of rights driven by the Warren court, but not moving to reverse the decisions of the Warren Court.

Harry Blackmun (1970): One of the best examples of the liberalizing effect of being on the court. As the author of the opinion of Roe v. Wade, he’s vilified by the cultural right as an awful appointment of a liberal by a Republican. But his transformation is probably clearer by looking at his death penalty positions. Initially, he was a strong supporter of the death penalty, dissenting in curtailments of the death penalty early in his tenure. But by the end of his term, he was resolutely against the death penalty, stating in 1994 that "[f]rom this day forward, I no longer shall tinker with the machinery of death."

Lewis Powell (1972): Powell was typically the swing vote on contentious cases. He most famously wrote the opinion in the 1978 Bakke case, which banned the use of racial quotas but upheld the use of affirmative action. But after his retirement in 1987, he eventually changed his mind on the death penalty, concluding that it should be abolished. And despite casting a deciding vote in Bowers v. Hardwick, which denied the extension of the right to privacy cited in Roe to overturn laws against consensual intercourse between partners of the same sex, he later regretted the vote and said the dissent was the better argument.

Now what of the current members of the court? Ford-appointee John Paul Stevens is solidly in the “liberal” camp. Initially supportive of capital punishment and a dissenter in the Bakke case, he’s now generally against the death penalty and voted with the majority on the University of Michigan affirmative action case. Sandra Day O’Connor is, like Lewis Powell before her, typically the deciding vote on 5-4 decisions. She was a deciding vote on Casey v. Pennsylvania (upholding Roe v Wade), and wrote the opinion on the University of Michigan case. And the man who replaced Powell, Anthony Kennedy, may be, after Blackmun, one of the best examples of someone being “liberalized” by his tenure on the Supreme Court. Considered a moderately conservative jurist when appointed to the bench by Ronald Reagan, Kennedy has become the cultural conservatives’ most hated Justice for his supposedly “activist” decisions on landmark cases like the 1992 affirmation of Roe in Casey v. Pennsylvania, the Lawrence case that overturned Bowers, and this year’s ban on capital punishment for juveniles.

Even William Rehnquist can be seen as less conservative than what the James Dobsons of the world would like. According to Jeffrey Rosen,

Twenty-five years later, after having repeatedly ridiculed the constitutional soundness of the decision requiring police officers to read suspects their Miranda rights, Rehnquist voted to uphold it. "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture," he wrote in a 7—2 opinion for the Court in Dickerson v. U.S., in 2000. Rehnquist's apostasy provoked one of Justice Antonin Scalia's most vitriolic dissenting opinions. Joined by Justice Clarence Thomas, Scalia declared, "Today's judgment converts Miranda from a milestone of judicial overreaching into the very Cheops' Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance."

Rehnquist's evolution from Miranda's leading critic to its improbable savior infuriated conservatives and confused liberals; but in fact it was emblematic of his career. Throughout his long tenure, liberals always simplistically lumped Rehnquist together with the other conservatives on the Court, whereas conservatives never fully embraced him as one of their own. Furthermore, liberals have never understood how significantly and frequently Rehnquist departed from doctrinaire conservative ideology, and conservatives have failed to grasp that his tactical flexibility was more effective than the rigid purity of Scalia and Thomas. In truth, Rehnquist carefully staked out a limbo between the right and the left and showed that it was a very good place to be. With exceptional efficiency and amiability he led a Court that put the brakes on some of the excesses of the Earl Warren era while keeping pace with the sentiments of a majority of the country—generally siding with economic conservatives and against cultural conservatives. As for judicial temperament, he was far more devoted to preserving tradition and majority rule than the generation of fire-breathing conservatives who followed him…

''I'm a strong believer in pluralism," Rehnquist told The New York Times Magazine in 1985, the year before he was appointed chief justice. "Don't concentrate all the power in one place … You don't want all the power in the Government as opposed to the people. You don't want all the power in the Federal Government as opposed to the states."

All of this raises a question: why does it seem that most people, after serving some time of the Supreme Court, moderate their positions on contentious issues, especially those pertaining to personal privacy and the reach of the government to take away personal liberties or life? I don’t know enough about the court or jurisprudence to confidently offer an explanation, but I have some thoughts. For instance, many people come to the court with a strong sense of place (like O’Connor and Arizona, Powell and Virginia, or Kennedy and Sacramento). While in the context of their previous lives they were probably quite cosmopolitan and open-minded, dealing with the issues before the Supreme Court will undoubtedly expand the horizons of anyone. Likewise with professional background; some come to the bench via academia, or after work in the private sector. Few Justices in recent decades had experience in electoral politics, so they may not have the greater understanding of our nation’s diversity that one would more likely get from running for office in a large, diverse state or highly heterogeneous district. There is also the diversity of experience and outlook among the justices themselves. Arguing with other corporate attorneys or experts in a few areas of the law probably doesn’t challenge ones deeply held beliefs on personal liberties as much as weighing cases about reproductive rights, religious freedoms, criminal punishment and the like. Whatever the case, the seems to be some dynamic that leads Justices to question and change their conservatives beliefs to a much greater degree than the liberal appointees to the Court.

With the court so evenly divided on so many crucial issues, it’s not a great comfort for progressives to know that the odds are good that any competent jurist qualified to sit on the Supreme Court who also possesses a sound judicial temperament is likely to moderate their some of their conservative positions over time. There may not be much time left to protect some of the positions that are not protected by only a 5-4 margin. But over time, it appear that even many of those jurists who go to the court as advocates of bloodlust (capital punishment) and government control over reproductive rights change their mind. Let’s hope the same thing happens with George W. Bush’s appointment(s) to the Supreme Court.

Comments

[teacherken]

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

[emptypockets]

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?

[DHinMI]

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.

[DHinMI]

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.

[donna]

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.

[DHinMI]

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.

[Mimikatz]

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.

[DHinMI]

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.

[James]

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.

[Ben P]

My guess is Miguel Estrada. Care to bet?

[David Fried]

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.

[Steve Dowling]

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.

[emptywheel]

DH

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.

[James]

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

[J.S.]

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.

J.S.

[RonK, Seattle]

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.

[Crab Nebula]

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.

[CaliforniaDrySherry]

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.

[emptywheel]

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.

[DHinMI]

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.