pageok
pageok
pageok
What Sort of Supreme Court Nominees "Grow in Office"?

The OpinionJournal article by John Fund (tip to Orin) recounts the long list of appointees by Republican Presidents who have failed to reflect the appointing President's principles, listing seven failures to keep the Republican faith: Justices Warren, Brennan, Blackmun, Stevens, Souter, O'Connor, and Kennedy:

After leaving office, Dwight Eisenhower was asked by a reporter if he had made any mistakes as president. "Two," Ike replied. "They are both on the Supreme Court." He referred to Earl Warren and William Brennan, both of whom became liberal icons.

Richard Nixon personally assured conservatives that Harry Blackmun would vote the same way as his childhood friend, Warren Burger. Within four years, Justice Blackmun had spun Roe v. Wade out of whole constitutional cloth. Chief Justice Burger concurred in Roe, and made clear he didn't even understand what the court was deciding: "Plainly," he wrote, "the Court today rejects any claim that the Constitution requires abortions on demand."

Gerald Ford personally told members of his staff that John Paul Stevens was "a good Republican, and would vote like one." Justice Stevens has since become the leader of the court's liberal wing.

An upcoming biography of Sandra Day O'Connor by Supreme Court reporter Joan Biskupic includes correspondence from Ronald Reagan to conservative senators concerned about her scant paper trail. The message was, in effect: Trust me. She's a traditional conservative. From Roe v. Wade to racial preferences, she has proved not to be.

Similarly, Paul Weyrich of the Free Congress Foundation recalls the hard sell the Reagan White House made on behalf of Anthony Kennedy in 1987, after the Senate rejected Robert Bork. "They even put his priest on the phone with us to assure us he was solid on everything," Mr. Weyrich recalls. From term limits to abortion to the juvenile death penalty to the overturning of a state referendum on gay rights, Justice Kennedy has often disappointed conservatives.

Most famously, White House chief of staff John Sununu told Pat McGuigan, an aide to Mr. Weyrich, that the appointment of David Souter in 1990 would please conservatives. "This is a home run, and the ball is still ascending. In fact, it's just about to leave earth orbit," he told Mr. McGuigan. At the press conference announcing the appointment, the elder President Bush asserted five times that Justice Souter was "committed to interpreting, not making the law." The rest is history.

Harriet Miers is unquestionably a fine lawyer and a woman of great character. But her record on constitutional issues is nil, and it is therefore understandable that conservatives, having been burned at least seven times in the past 50 years, would be hesitant about supporting her nomination.

Some of these seven (eg, Stevens and Kennedy) have been very good to excellent Justices IMO--and most of them have made important positive contributions.

Yet since the Stevens nomination, the only two Republican-appointed Justices who stayed fully true to form were Scalia and Thomas. Consider how these two differed from the other Republican appointments over that period (Stevens, O'Connor, Kennedy, and Souter). Scalia and Thomas were movement conservatives who before their nomination were publicly attacked for their views. Before appointment, they had taken public positions that were perhaps broadly popular with the general public, but unpopular with educated elites and the press. Scalia and Thomas had sharpened and defended their ideas against attack.

By contrast, before their nominations Justices Stevens, O'Connor, Kennedy, and Souter had not faced much public criticism for their judicial and legal ideologies. Their conservative ideologies were not as well formed, if they existed at all. Thus, they "grew in office." In her conservative background before appointment, Miers is much more like O'Connor, Kennedy, and Souter (and Blackmun from an earlier era) than like Scalia and Thomas.

What surprises me is that the point I am making here is not a new one. Certainly, Bush staffers must understand that Miers has the perfect profile for making a strong turn to the left once she has served on the bench for a few years. No one can predict what she will do on the Court, but I would expect to see substantial movement to the left—later, if not sooner. It wouldn't surprise me if Miers started out to the right of Roberts and ended up well to his left.

So where does Chief Justice Roberts fit into all this? On the one hand, Roberts is a conservative movement lawyer (his Reagan-era memos show this). On the other hand, unlike Scalia and Thomas, Roberts kept his head down and did not have to defend his own possibly unpopular opinions in public. From the simple analysis in this post, one would expect Roberts to be a less stalwart conservative than Scalia or Thomas, perhaps more in the mold of O'Connor or Kennedy, moving somewhat to the left, but not strongly so.

Ted Frank (www):
To be fair, it's five, rather than seven: Warren and Brennan, while perhaps regretted, were purely political nominations, rather than an attempt by Eisenhower to put a particular type of justice on the Court. Brennan was a cross-party nomination.
10.10.2005 5:58pm
JackJohn (mail):
I disagree with Jim. If anything, I think Roberts honed his conservative philosophy while working as a litigator and a policy-maker in the Reagan administration.
10.10.2005 6:06pm
alkali (mail) (www):
1) Query whether the Eisenhower anecdote Fund relates is true. (See my comments on a recent VC post suggesting that it is an urban legend.

2) Query whether Stevens and O'Connor are any more liberal than the 1970s-era GOP. Arguably the party changed and they didn't. (Indeed, one wonders if Gerald Ford still votes Republican these days.)

3) Query in what sense the Court now has a "liberal wing" of which Stevens is the leader. Clearly some members of the Court are closer to the liberal end of the spectrum than others, but there is no one on the court as clearly liberal as Brennan or Marshall.
10.10.2005 6:10pm
Simon (391563) (mail) (www):
I'm also not sure how fair it is to characterize Justices Warren, Brennan, Stevens and Souter has having "grown" in office. One could argue -- as my more liberal friends do -- that they remained relatively constant in their judging. The "growth," such as it is, reflects either failed predictions or promises on the part of their supporters or a general shift rightward in jurisprudence. To borrow a phrase, it might just be all relative.

Justices Blackmun, O'Connor, and Kennedy are not as easily explained, especially given at least the first and the last's willingness to revisit prior decisions.
10.10.2005 6:11pm
DJ (mail):
I'd agree with Jim but for one critical player: Chief Justice Roberts. Assuming he is a movement conservative (and I think he is), Roberts differs fundamentally from his conservative colleagues and forebears. He is not a bombastic academic like Scalia or iconoclastic think-tank type like Thomas. He's a litigator who's dedicated his career to persuading others through the power of argument. He can be expected to hold Miers's hand (and, for that matter, Kennedy's and maybe even Souter's!) to reach the right result in the cases that matter.

Miers may be prone to "grow in office" after she's confirmed. But, with Roberts as her chief, who's to say the growth must be to the left?
10.10.2005 6:16pm
Gene Vilensky (mail) (www):
How does this explain Rehnquist, who was not known publicly and did not have to defend his views (and therefore hone his skills). In that regard, Roberts is more like Rehnquist (conservative judicial clerkships, service in DoJ, etc.). So I actually think that there are three categories needed to be looked at.

1) Stealth relative unknowns with no publicly recognized stances on legal issues that have been criticized and bantered back and forth. e.g. Souter, O'Connor (somewhat), Kennedy, Blackmun.

2) Solid conservatives who were publicly recognized and had their ideas roundly critiqued by opponents. e.g. Scalia, Thomas (to some extent)

3) Solid conservatives without publicly recognized views, but who have had significant legal experience in the upper echelons of federal apellate work e.g. Rehnquist and Roberts.
10.10.2005 6:27pm
David Sucher (mail) (www):
There is another way to look at it: If one objectively, intelligently and dispassionately exasmines most issues, one of course and eventually comes -- no matter where one starts -- to what is characterized as a "liberal" position.

Consider that, my conservative friends.
10.10.2005 6:44pm
lyle stamps (mail):
Dear David:

Did you just intentionally insult conservative attorneys &judges who consider themselves objective, intelligent &dispassionate?
10.10.2005 6:55pm
William B. Modahl (mail):
It may be that the safest bet for conservatives is an appointee with a clear record of positions on issues which would make it embarrassing to "grow" in office. Thanks to Judiciary Committee liberals and their press accessories, there is an oppressive climate of PC that assures one will learn nothing in the hearings. Perhaps the old system of an up or down vote with no hearings was the best.
10.10.2005 7:07pm
JayJ:
Professor Lindgren,

Perhaps the most pertinent analogy to Miers (at least, at this early date in the confirmation process) is Tom Clark, nominated by Harry Truman in 1949. Even though Clark was Truman's Attorney General and close friend, Clark ruled directly against Truman in Youngstown v. Sawyer, the 1952 steel mill seizure case. Meet the Press this past Sunday discussed Clark and showed a clip from his appearance on MTP from April of 1970 -- the transcript can be found at this link.

One interesting thing Clark said on MTP in 1970:

"My opinion changed quite often on the Court. And, you know, many of the decisions I made when I was attorney general, I was attorney general. But when I got on the Court, why, there's a different viewpoint. There's something behind your chair, you know, that sort of nudges you now and then. And so you get a different view of a situation. I'm a justice then, so I tried to decide it as a justice."

If George W. Bush hopes that Harriet Miers will simply do Bush's bidding on the Supreme Court (especially when it comes to presidential authority), Bush better hope that Miers doesn't "grow" the way Clark did.
10.10.2005 7:18pm
Robert Schwartz (mail):
"Stevens and Kennedy) have been very good to excellent Justices IMO"

I think you have made the case for impeachment on the grounds of failure to adhere to the constitution.

David Sucher "If one objectively, intelligently and dispassionately exasmines most issues, one of course and eventually comes -- no matter where one starts -- to what is characterized as a 'liberal' position."

You have defined the essence of the arrogance of liberal elitism.
10.10.2005 7:26pm
Gordon (mail):
Robert: I took David Sucher's comments as being stated with more than a bit of tongue in cheek.

As for your other comment, it makes no sense to me, unless Conspirator Jim Lindgren is a flaming leftist. And I wasn't aware of any flaming leftists on this blog.
10.10.2005 7:46pm
Gordon (mail):
As for O'Connor, other than Roe v. Wade (admittely a pretty big issue), where else did her views "evolve" to the left?

Certainly not on women's issues, where she is well to the left of the Conservative movement. Her first big decision was the Mississippi Women's College case of 1982, where she wrote the opinion finding an all women nursing school unconstitutional.

And as for affirmative action? In both of her opinions she disputed the dissenting opinion's statement that strict scrutiny was always "fatal in fact." In 2003's Grutter decision she merely proved that she was right and they were wrong.
10.10.2005 7:50pm
Gordon (mail):
A followup to my earlier post, the affirmative action decisions she wrote were Croson v. Richmond in the late 1980's and Adarand v. Pena in 1995. Her words in Adarand:

Finally, we wish to dispel the notion that strict scrutiny is "strict in theory, but fatal in fact." The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it. As recently as 1987, for example, every Justice of this Court agreed that the Alabama Department of Public Safety's "pervasive, systematic, and obstinate discriminatory conduct" justified a narrowly tailored race-based remedy. When race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the "narrow tailoring" test this Court has set out in previous cases.

So there wasn't any evolution on affirmative action.
10.10.2005 8:04pm
David Sucher (mail) (www):
Dear Lyle and Robert.
First of all, I didn't write the post -- whose very point is that left to their own devices, many erstwhile conservative Justices end up with "liberal" positions. Unhappy with those facts? Complain to the Justices, please.
Second, have you no sense of humor? I think it's pretty funny that there does appear to be a pattern of "conservatives" ending up with "liberal" positions.
10.10.2005 8:36pm
Daniel Chapman (mail):
Give nine people essentially unlimited power and life tenure, and I'm not all that surprised when they decide it's foolish to constrain themselves to the text of a 200 year old document. It has nothing to do with the validity of liberal arguments. People just don't "grow" to the right.
10.10.2005 8:56pm
Matthew22v21 (mail):
"Did you just intentionally insult conservative attorneys &judges who consider themselves objective, intelligent &dispassionate?"

Mr. Sucher can speak for himself, but no, I believe they're insulting themselves.

In other words, Mr. Lindgren's argument (hard on the heels of Mr. Frum's) seems to be that "judicial conservatism" is a delicate, hothouse flower. Proponents of this point of view appear to be saying that unless one has been indoctrinated to a Manchurian Candidate extent, in a level contest on the merits, conservatism will always lose, and thus "growing in office" always swings one to the left. In other words, the yelping from "judicial conservatives" regarding Miers right now makes it look like they believe their point of view has so little appeal and legitimacy that of course she'll swing to the left unless she has demonstrable reality-denying tendencies.

This is hardly reassuring to the more old-fashioned variety of conservative such as myself, who believes conservatism needs no such self-imposed blinkering.
10.10.2005 9:00pm
Bruce Wilder (www):
There's something very odd about the juxtaposition of 1.) a nominee saying, as Roberts did, that he does not want to take a position on an issue in the Senate hearings, because it could be tantamount to prejudging the case, and, as a judge, he has obligation to remain open to the arguments and evidence presented by advocates, and
2.) conservatives complaining about a Justice, who "grows", meaning decides a case based on the merits of the arguments presented, judged at the time of the case, rather than deciding the case by repeating the imperatives of a "philosophy" held unchanged for 20+ years.

I'm with David Sucher: the essence of the complaint is, apparently, that "objectively, intelligently and dispassionately" considering the cases before them, is "liberal." That's the only sense I can see in the dubious assertions that Kennedy or O'Connor have been "liberal."

The conservatives want predictable results, regardless of the case or the arguments made, regardless, one might suppose, of what the Constitution says, or what a relevant statute says.

I hope the Miers nomination is defeated, and Bush sends up a certifiable conservative, paper trail and big mouth and all. I want to see the Senate try to confirm someone, who, reliably and inflexibly holds authoritarian opinions opposite to, and oppressive of, 65% of the population. The entertainment value of Bork II would be worth the price of admission.
10.10.2005 9:01pm
JackJohn (mail):
Thing is, conservatives today have think-tanks, pollsters, and social science degrees, too. Their fingers are on the pulse of the nation. They pitch their rhetoric to the heartland. A Luttig or a Rogers Brown would appear to the public a calm, intelligent, and powerful representative of centrism. The Senators who challenged such a nominee would look like fools.
10.10.2005 9:29pm
The Family:
To accept another "Trust me" candidate is to assume the "Please, sir, may I have another" position.
10.10.2005 10:09pm
Emily:
Hello,

I'm a bit confused about why Warren was a disaster. Without him, we'd likely not have Brown v. Board of Education. According to Frankfurter, the Warren nomination was evidence that there was a God. I'd say that Brown is plenty reason to be absolutely thrilled that Eisenhower nominated Warren. All of the justices are largely inconsistent anyway, so you might as well take the bad with the good.
10.10.2005 10:43pm
JackJohn (mail):
Brown -- the outcome -- is one thing. Warren's method of constitutional interpretation is another.
10.10.2005 11:11pm
Anthony Argyriou (mail):
Good Lord, Emily! Have you actually read Brown v Board of Education? There's no good way to read that and come away with the view that the Justices did anything other than legislate from the bench - they wanted a certain result, and wrote a half-assed freshman sociology paper to justify it. A far better, and more intellectually honest decision would have reached the same result by saying that Harlan's dissent was approximately right, though that stuff about Asians was nonsense, and/or that the states could never be trusted to maintain equality of segregated facilities, as evidenced by 80 years of practice to the contrary.
10.10.2005 11:18pm
Anthony Argyriou (mail):
Daffyd, over at ChequerBoard (Pejman's new blog), says that Miers is of a type which won't be drawn to the left, or at least that Bush believes she is.

One hopes he's right.
10.10.2005 11:20pm
SimonD (www):
I discussed this very subject here, in concurrence to a Prof. Zywicki post here at volokh.
10.10.2005 11:23pm
Challenge:
Akali,

I recall reading it in the Eisenhower biography by Geoggrey Perret. Apparently Ike called Warren "that dumb SOB" in a conversation with Stephen Ambrose, as well as several times calling Warren's appointment a "mistake." If you recall, Warren was only nominated because that was the political deal for Warren's delivering California for Ike.

WRT Justice Stevens "not changing," he certainly has. The best example is his once vehment opposition to affirmative action and reverse discrimination.
10.10.2005 11:52pm
Adam (www):
People just don't "grow" to the right.

Justice White, there's a call for you on line one!
10.10.2005 11:54pm
jgshapiro (mail):
I think the discussion of Thomas is not correct: he was not well-known as a movement conservative when he was nominated. At least, not by the Senate. Remember, many senators believed he would end up voting like Kennedy and some Democrats voted for him on that basis.

He had also only been a judge for something like 11 months when appointed; before that, he was head of the EEOC, not an agency well-known for producing supreme court justices or honing consititional theory (albeit, perhaps better known for that than the Texas Lottery Commission).

Really, only Scalia and Bork (and Rehnquist, if you go back to 1971) were well-known movement conservatives before they were nominated. Scalia was confirmed because he was replacing another conservative (Rehnquist or Burger, dpending on how you look at it) and because the Dems focused their attack on Rehnquist's elevation to CJ. Bork, of course, got shot down.

I'm not sure what the lesson here is for conservatives, but perhaps it is this: if you want a movement guy, you should have nominated him instead of Roberts, alongside Scalia for CJ. Scalia would have taken the heat and his replacement as associate justice would have been confirmed.
10.11.2005 12:02am
Buck Turgidson (mail):
Did you just intentionally insult conservative attorneys &judges who consider themselves objective, intelligent &dispassionate?

Are you suggesting that Scalia and Thomas are "objective and dispassionate"? Take another look at Thomas's unexpected outburst in the cross-burning case where he changed the tide in the opinion.

But then there is another issue. One cannot be a consistent ideologue and "objective and dispassionate" at the same time. The two are mutually exclusive. Those you consider "liberal" are so because they lack the ideology and, therefore, are prone to make independent decisions based on law. What you would like is for the Supreme Court to ignore the Constitution, to ignore stare desisis, to ignore social significance of their actions. You want them blindly and obediently to follow the instructions from a dark bunker at the Heritage Foundation. Is this what you mean by "objective and dispassionate"? Someone who follows orders? I wonder where we've heard before from a particular justice system. Shall we look back, say, seventy years or so?
10.11.2005 12:14am
Malloy (mail):
Anyone care to guess why it's always conservative appointments that drift liberal, and not the other way around? Any examples of this?
10.11.2005 2:00am
alkali (mail) (www):
Challenge writes:

I recall reading it in the Eisenhower biography by Geoffrey Perret. Apparently Ike called Warren "that dumb SOB" in a conversation with Stephen Ambrose, as well as several times calling Warren's appointment a "mistake." If you recall, Warren was only nominated because that was the political deal for Warren's delivering California for Ike.

Thanks for the pointer. It seems odd that Perret would report it and Ambrose, who also wrote an Eisenhower biography, would not.

I understand that the claim that Warren was appointed as part of a political deal is disputed.
10.11.2005 9:25am
Victor Davis (mail) (www):

Certainly, Bush staffers must understand that Miers has the perfect profile for making a strong turn to the left once she has served on the bench for a few years.


Miers is the only evangelical Christian in the list, no? I am concerned that you are underestimating the role that this might have played in the nomination process. She goes to the right church; it's a Southern thing. I suspect that GWB has great faith in her faith and mixes "strict Constructionist" and "conservative" and "properly religious" all into one pot. The point, however, is that to a born-again like Bush, a fellow born-again is rock solid and unquestionable.
10.11.2005 9:44am
jACKJOHN (mail):

Miers is the only evangelical Christian in the list, no?



No. Michael McConnell is an evangelical, and as credentialed as John Roberts.
10.11.2005 11:03am
Unnamed Co-Conspirator:
"Conservative" or "liberal" is a red herring. The reason that the mentioned left-turning justices disappointed is that they did exactly what many "conservatives" expected them to do, that is, vote in favor of particular policies. The problem was that the policies they favored weren't the ones that conservatives at the time of the decisions agreed with. The relevant difference between Scalia/Thomas and O'Connor/Souter et al. isn't that the former retained their conservatism but that the latter moved left. The difference is that the former consistently adhered to a judicial philosophy that rendered their personal policy preferences irrelevant to their votes on the Court, while the latter never had such a judicial philosophy, so they were crap-shoots from the outset. Nothing has changed. Conservatives hyperventilate about whether a nominee is sufficiently pro-life, proving that the Dems characterization of originalism as synonymous with pro-life activism is spot on. It is completely lost on you that Roberts redirection of the discussion at his confirmation hearings from abortion rights to judicial philosophy wasn't evasion, but dismissal of an irrelevancy. As long as self-described conservatives are this clueless about what is required to choose justices who will restore the Court to its proper role in our system, we will continue to be disappointed, the Court will continue to act as a super-legislature, and the founders' masterwork - our federal system - will continue its steady deterioration, caused not by any design flaw, but by gross neglect and misuse by people too short-sighted to maintain it for future generations.
10.11.2005 11:06am
Cold Warrior:

Chief Justice Burger concurred in Roe, and made clear he didn't even understand what the court was deciding: "Plainly," he wrote, "the Court today rejects any claim that the Constitution requires abortions on demand."

John Fund doesn't understand the early 1970s zeitgeist.

Indeed, Burger's comment -- expressing relief that the Court did not find an inalienable right to have an abortion at any time, for any reason, to be paid for by the State if the woman could not afford to pay herself -- addressed a very real possible outcome of the Roe litigation.

That is why the Roe decision is best expressed in the awkward formulation: "the right to choose to have an abortion.

So don't forget: it was certainly possible that in 1973 the Supreme Court could have found that the right to have an abortion is akin to the 6th Amendment right to counsel; i.e., not just a right to hire an attorney if you can afford one, but the right to have an attorney provided to you if you couldn't.
10.11.2005 11:08am
Gordon (mail):

The relevant difference between Scalia/Thomas and O'Connor/Souter et al. isn't that the former retained their conservatism but that the latter moved left. The difference is that the former consistently adhered to a judicial philosophy that rendered their personal policy preferences irrelevant to their votes on the Court, while the latter never had such a judicial philosophy, so they were crap-shoots from the outset.

Maybe Thomas. But Scalia's vote on Raich v. Ashcroft, and (based upon oral argument) his likely vote in the Oregon Assisted Suicide case, speak suspiciously to policy preferences, not judicial philosophy.
10.11.2005 11:39am
kfm:

According to Frankfurter, the Warren nomination was evidence that there was a God.


The death of the previous chief justice, and not Warren's nomination, was evidence that there is a God.
10.11.2005 11:57am
James Kabala (mail):
Worth noting is that in his first term on the Supreme Court, Souter was regarded as being a conservative and providing the crucial fifth vote for the conservative agenda (since White and/or O'Connor would be considered likely to take the liberal position on some issues.) For proof of this, just read Souter's entry in The Oxford Companion to the Supreme Court, which was published in the fall of 1991. Not until the end of his second term did the graduation prayer and Casey decisions show that Souter was not a reliable conservative, and it took a couple more years to show that he was not just to the left of Rehnquist, Scalia, and Thomas, but to the left of O'Connor and Kennedy as well. He clearly "grew" in office.
About the Eisenhower quote: I assume that, whether authentic or phony, the quotation is supposed to show Eisenhower's alleged displeasure with cases like Baker v. Carr, Engel v. Vitale, and Miranda v. Arizona , not just (if at all) with Brown. After all, in no version of the quotation does Ike condemn Harlan or Stewart, who were equally anti-segregation as Warren or Brennan. The unanswered questions are:
1. Did Eisenhower really disapprove of these later decisions?
2. Even if he did dislike the decisions, was he really angry enough to express such harsh disgust over his appointments, and did he actually do so?
10.11.2005 12:01pm
Anderson (mail) (www):

Anyone care to guess why it's always conservative appointments that drift liberal, and not the other way around? Any examples of this?
Because people grow wiser with age?

No, seriously, didn't Hugo Black get more conservative in his last years? (Senility, say we libs.)
10.11.2005 12:29pm
Unnamed Co-Conspirator:
Gordon, this isn't really about any particular justice, is it? Scalia's opinions on 1st, 4th and 6th amendment issues don't get much attention among so-called "liberals" who, presuming that the actually are liberals, would be appalled if, for example, if the dissenting position in Kyllo were the law of the land. But the whole "liberal or conservative" distraction is just that. I'd love to see a nominee who is a committed constitutional originalist whose record includes a stated personal preference for a pro-choice policy, legislatively established, of course. There are a lot of lawyers, and presumably at least a few judges, who resemble that description. It may be what we need to lead the way toward a restoration of Constitutionally required separation of powers among the branches of federal government and the proper allocation of governmental functions between the federal government and the states. It'll never happen, of course, because evangelical conservatives aren't really sure they want democracy and popular self-government any more than the pro-choice left does. That's an overgeneralization, of course, but you get the point -- the wingnuts on either side are determined to use the Court as an undemocratic weapon to force their preferred policies on the rest of the country.
10.11.2005 12:54pm
dew:
"I'd love to see a nominee who is a committed constitutional originalist whose record includes a stated personal preference for a pro-choice policy, legislatively established, of course."

Although he may have changed his views since, I believe that position describes Robert Bork back in 1987.
10.11.2005 1:51pm
James Kabala (mail):
Really? The Bork of today is a committed social conservative.
10.11.2005 3:07pm
Unnamed Co-Conspirator:
Yeah, dew, and the Dems portrayed him as a troglodyte who would restore racial segregation. There's some support for an originalist position that Brown was incorrectly decided, but it's not the pro-segregationist position that the hero of Chappaquiddick claimed it was. There were (and presumably still are) some who would read the Enforcement Clause of the 14th amendment to make it the job of Congress, not the Courts, to prescribe a remedy for violations of the equal protection clause. Of course, the Senate rules were a major obstacle for any such action, since for many years the Dixiecrats were able to use the filibustered to frustrate every attempt in Congress to put an end to Jim Crow. That's the context for Brown and, especially Bolling v. Sharpe, which is on very shaky constitutional ground. But with such a moral imperative, who wouldn't be tempted to bend the Constitution to achieve the right policy result? Sticking to original meaning wasn't so easy then. Fortunately, there's nothing like racial segregation out there today to provide a moral dilemna for a justice trying to remain faithful to the original meaning of Constitutional language. Certainly abortion rights don't provide that sort of challenge, as the states would provide sufficient protection for those rights, even if legislation wouldn't be as one-sided on the issue as the Court's decisions have been. But, 50 years after Brown, when equal protection clause controversies include whether it's ok to use racial classifications to achieve racial diversity, we have justices who find any excuse for a results-first/reasoning as afterthought approach to Constitutional interpretation.
10.11.2005 3:09pm
dew:
James,

I really have not paid much attention to Bork since back then, but he did claim to be personally "liberal" on some social issues. He seemed to be exactly what many seem to want today in a judge - someone who appeared to carefully separate his political opinions from his judicial opinions.

Note I did't care for him much (being more of a "moderate"), and at the time I thought he worked a bit too hard to convince people that no matter how smart and able he was, his ego was that much bigger. On the other hand, I agree (maybe not as strongly) with Unnamed Co-Co; I thought at the time that he was railroaded by a bunch of loud liberals because of a few hot-button issues (really just one issue) and that he would have made a competent and possibly an excellent SC justice.
10.11.2005 6:46pm
The Family:
"Anyone care to guess why it's always conservative appointments that drift liberal, and not the other way around? Any examples of this?"

"Because people grow wiser with age?"

Because power corrupts.
10.11.2005 9:04pm
SimonD (www):
Really, only Scalia and Bork (and Rehnquist, if you go back to 1971) were well-known movement conservatives before they were nominated. Scalia was confirmed because he was replacing another conservative
I prefer to think that it was because there was simply no way the opposition could credibly claim that this guy didn't deserve to be on the court.

I think it's true that a lot of people look back on Scalia's confirmation hearings through the same glasses through which we remember Yoda in The Empire Strikes Back. We would all like to remember that the puppet was totally convincing, but it never really was; likewise, we'd like to remember that Scalia gave a fire-breathing defense of originalism and put the Senators in their place. The reality is that the puppet was never actually that good, and while Scalia was funny, charming and brilliant, I don't recall seeing him answer that many more questions than, say, RBG.
10.12.2005 12:57am
SimonD (www):
UCC-
The reason that the mentioned left-turning justices disappointed is that they did exactly what many "conservatives" expected them to do, that is, vote in favor of particular policies. The problem was that the policies they favored weren't the ones that conservatives at the time of the decisions agreed with. The relevant difference between Scalia/Thomas and O'Connor/Souter et al. isn't that the former retained their conservatism but that the latter moved left. The difference is that the former consistently adhered to a judicial philosophy that rendered their personal policy preferences irrelevant to their votes on the Court, while the latter never had such a judicial philosophy, so they were crap-shoots from the outset.
I think this is exactly right, and deserves repeating.
10.12.2005 1:08am
Matthew22v21 (mail):
"I'd love to see a nominee who is a committed constitutional originalist whose record includes a stated personal preference for a pro-choice policy, legislatively established, of course."

Although he may have changed his views since, I believe that position describes Robert Bork back in 1987.


Trouble is, given Bork's comments about the Ninth Amendment, he's not a constitutional originalist.

That's the problem with the literalist Bork/Scalia/Thomas crowd: What if the original intent of the Founders was that the Constitution shouldn't be interpreted with an eye to Original Intent? Given the existence of the Ninth Amendment, and the insistence of some of the states that they wouldn't ratify the Bill of Rights without the Ninth Amendment to pre-empt overly literal types, that seems fairly clear.

That's the problem with "movement conservatives". They don't want to actually conserve anything. They're subversives, in the sense that they want to subvert the Constitution to their own narrow policy ends.

Irony of ironies, Nino Scalia is the greatest obstacle today to implementing the original intent of the Founders.
10.12.2005 2:48am
Unnamed Co-Conspirator:
Thanks, SimonD. 'til I'm blue in the face, but it still doesn't seem to sink in, does it? Rove reassuring Dobson on Miers' pro-life cred doesn't give me a good feeling.

Sometime within the last week or so, I speculated that we might end up with a shift on the court giving us a modification of Roe, based on medical science, just like Blackmun's opinion. I can imagine that it would be contained in a fragmented decision scattered through the opinion of the Court and a few separate concurring opinions, in which a plurality of the justices insist that that unborn children gradually acquire "person" status under the Constitution gradually starting at conception, and a majority holding that significant protection is guaranteed at some point fairly early in development, thereby keeping the abortion issue in federal courts rather than in state legislatures, and doing nothing that rights the federalism ship. That speculation is still pretty far-fetched, but seeming less and less so the more I hear from people who think Miers' views on abortion policy is important.
10.12.2005 1:10pm
Matthew22v21 (mail):
"...I speculated that we might end up with a shift on the court giving us a modification of Roe, based on medical science, just like Blackmun's opinion."

If so, the most tangible standard would be that of brain wave activity, the same as we (generally) define death. Brain waves generally don't start up until the end of the third month-beginning of the fourth... By which time well over 90% of abortions have taken place.

I can easily see a variant of the slogan, "No brain waves, no humanity," taking hold.
10.12.2005 2:12pm
Unnamed Co-Conspirator:
Matthew22v21, perhaps you've missed the point. I didn't think I would need to explain why it would be entirely inappropriate for a court to make a decision on such grounds. That's what legislatures do when they writes laws. It's not what Courts do. Legislative decisions should be made by legislatures -- state legislatures in the example given -- not federal courts. Turning Blackmun's opinion in Roe upside-down to achieve a different result does not improve it. If it were a movie on a DVD, it would have alternate endings, neither of which would make it good.
10.12.2005 5:33pm
SimonD (www):
Matthew22v21-
Do you actually believe that originalism, as advocated by Bork, Scalia et al, is concerned with the original intent of the framers? You do understand that mostly every originalist explicitly REJECTS the original intent?

Every time I see someone criticising originalism and using the term original intent, I have to wonder whether they even understand the theory they're attacking, and that doubt renders their criticisms presumptively invalid.
10.13.2005 2:29pm