The Volokh Conspiracy - 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.

	[Jim Lindgren, October 10, 2005 at 4:52pm] Trackbacks 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.