Why Are Republicans So Awful at Picking Supreme Court Justices?
That's the depressing question Marc Thiessen is asking today in his column at the Washington Post.
Just compare the records over the last three decades. Democrats have appointed four justices — Ruth Bader Ginsberg, Stephen G. Breyer, Elena Kagan and Sonia Sotomayor. All have been consistent liberals on the bench. Republicans, by contrast, have picked seven justices. Of Ronald Reagan’s three appointees (Sandra Day O’Connor, Antonin Scalia and Anthony M. Kennedy) only Scalia has been a consistent conservative. George H.W. Bush appointed one solid conservative (Clarence Thomas) and one disastrous liberal (David Souter). With George W. Bush’s appointments of Samuel A. Alito Jr. and Roberts, conservatives thought finally they had broken the mold and put two rock-ribbed conservatives on the bench — until last week, that is, when Roberts broke with the conservatives and cast the deciding vote to uphold the largest expansion of federal power in decades.
Thiessen names a few possibilities of why things are so. First, "there is no penalty for voting left, but there is for voting right." Conservative justices are viciously attacked by liberal politicians and the media if they dare to vote against the liberal agenda. They're blamed for polarizing America by liberal pundits, and shamed by a liberal President in his State of the Union Address while the world watches. But what consequences does a conservative justice face if he votes left? Some on our side sigh and say how disappointed we are, while others go so far as to defend the defection as some form of covert genius.
And second, "liberal nominees can simply affirm liberal positions, while conservatives must speak cryptically in terms of their judicial philosophy," Thiessen argues. For example,
In her 1993 confirmation hearings, Ginsburg declared the right to abortion “central to a woman’s life, to her dignity” and was confirmed 96 to 3. Breyer declared abortion a “basic right” and was confirmed 87-9. Imagine if a conservative nominee said the opposite? Their confirmation battle would be a nuclear war.
Bottom line: liberals are vicious and conservatives are spineless. Is that all there is to it?
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Comments:
May '12
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
I think it has something to do with the fact that democrats are up front about the fact that their sole reason for seeking office is to loosely interpret the Constitution and expand the size, scope, and reach of the federal government. The justices they pick have already bought into this.
Republicans profess that they run for office to limit the size of the federal goverment, but what they really mean is that they just want to grow it at a slightly slower pace than democrats. Thus republican nominated justics start out sounding good at the confirmation, just like republican candidates running for office - strict constitutional limits, blah, etc., but when it comes time to write the opinion or cast the vote in Congress the statist reality is on display.
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
Let's not forget the worst one ever - Nixon nominated Blackmun, who wrote Roe v Wade.
Dec '11
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
My take? They're terribly afraid of controversy; thus the way they threw Bork to the wolves.
In the case of Roberts, I can't imaginably blame Bush; after all, the man clerked for the late, great Rehnquist. Who knew?
And Thomas has been exemplary and Alito- mark my words- will turn out to be the most impressive one of all (with a little help from his colleagues of course).
Dec '10
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
It's because when progressives appoint uber-liberal anti-constitution judges, the republicans say, "Well, elections have consequences and they're entitled to appoint who they want." Then they vote to confirm and we're stuck for a lifetime with a tyrant who "interprets" our liberties away at will.
When republicans announce an appointment, the progressives say "He'd better be a moderate or we'll Bork him for sure!". Then the republicans appoint a moderate/turncoat who is still called "extreme" and filibustered by the progressives until either unrelated concessions are extracted from the republicans, or an even more liberal appointment is made.
What we have is a dynamic wherein the bad guys get to pick their players AND our players, while simultaneously calling us extremists and evil vile people, and the good guys just set back and say, "Yeah, we're sorry that we're so evil and vile. Tell us who you'd like us to nominate, and then we'll just go find a hole to crawl into and die."
I swear, when it comes to judicial nominations, the GOP would be just like Eeyore, except that Eeyore doesn't have their penchant for self immolation.
Mar '12
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
It appears that any Democrat or progressive lawyer who can put his/her finger in the air and identify where the wind is blowing from can be picked for the Supremes. It also appears that getting an Alito or a Thomas through the confirmation hearings is a lot like trying to get Bork through the confirmation hearings.
The Republicans, often spineless Republicans, are not willing to stand up to the Dems for the Borks of this country. Too bad. Bork would have been wonderful.
Oct '10
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
Maybe a better question is: Why do lawyers make such lousy Supreme Court Judges? (The answer is complicated but basically it's because they go to law schools). Who was the last Supreme Court Justice who was not a lawyer?
Lawyers ruin everything.
May '12
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
This is rhetorical, n'est ce pas?
As BrentB67 alludes to above, the left advances an agenda, there's not even a pretense of open-mindedness. On the right, you have some justices that are less strictly conservative, who will weigh a matter and occasionally take stance that sides with the left. It is a risk that comes with not demanding that everyone on the right walk in lockstep.
Nov '11
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
I am reminded of Dark Helmet's line from Spaceballs: "[E]vil will always triumph because good is dumb."
Oct '10
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
"Bottom line: liberals are vicious and conservatives are spineless. Is that all there is to it?"
Yep, that's it. Occam's Razor. Just look at each side's behavior and voting patterns when the opposing party nominates someone for SCOTUS.
They are ruthless and we are toothless.
Jan '11
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
The funny thing is that my first reaction is to say, no, of course not, it would be unfair to describe their side as craven and our side as virtuous if not perfect.
But the facts are undeniable. Liberals don't cave. Our guys do.
My second impulse is to cite the Bork hearings, where it was such a travesty that it marked ... but no, our guys were caving long before Bork, and their guys didn't.
That leads me to my third attempt, which I'm just starting on now ... what is it about the highest Court that would tempt even a jurist with a long career to cave?
I can't imagine it's just cowardice. I imagine that some of these guys have upheld executions, participated in mob trials, etc. These same guys didn't cave when al-Qaeda terrorists were on trial, when the threat of retaliation is much more ... direct.
Scratching my head on this one ...
May '10
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
Someone asked a similar question in the Member Feed not long ago. As I said there, it's not surprising that people who indulge in the power of the office would greatly outnumber people who practice restraint. When tempted with power under no threat of accountability, most people will embrace temptation.
But CoolHand's explanation probably hits closer to the mark. Few Republican politicians have demonstrated the wisdom and the courage to withstand the constant demonizations coming from the Left. Most won't even speak boldly against it, so why should we expect them to act against it?
Sep '11
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
"...liberal nominees can simply affirm liberal positions..." while conservative appointees apparently haven't yet calibrated how malleable they think the Constitution is.
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
dittoheadadt:
They are ruthless and we are toothless. · 4 minutes ago
Why? Why do conservatives so often act as though they're ashamed of the Constitution? Is it a lack of conviction?
This reaffirms AEI president Arthur Brook's argument that we need to make the case for free enterprise and limited govt in moral terms.
Aug '11
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
Basically, conservatives need to stop being . . . what was Rob's word? "Chicken-stuff"? . . . when it comes to defending conservatism.
May '10
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
Here's why. 'Nuff said.
Jun '11
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
Given his views on Rehnquist, Richard Epstein knew. Even John Yoo apparently had misgivings given Roberts' background as a pragmatic litigator. Also, there were a lot of questions about appointing Roberts as Chief Justice straightaway.
Hard to give Bush 43 the benefit of the doubt here. His first apppointment appears to have gone wobbly and he wanted Harriet Miers and his second. Whatever credit he gets for responding to the Proto Tea Party's anti-Miers campaign -- and selecting Alito -- is now overdrawn.
Aug '10
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
I watched five seconds and had to go throw up.
Oct '10
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
"liberals are vicious and conservatives are spineless. Is that all there is to it?"
Yep
Jun '10
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
Mark Monaghan: Maybe a better question is: Why do lawyers make such lousy Supreme Court Judges? (The answer is complicated but basically it's because they go to law schools). Who was the last Supreme Court Justice who was not a lawyer?
Lawyers ruin everything.
Mark: I'm a lawyer, and I take your insult a bit personally. One of the worst aspects of liberal thought is the propensity to over-generalize. Conservatives typically are a bit more thoughtful.
I would never suggest that all lawyers are wonderful citizens or that the profession is made up of Mother Teresas--there are plenty of lawyers I dislike (including liberal judges).
But remember: behind lawyers are clients encouraging them. Lawyers don't cause divorces, but they handle them. Lawyers don't create business activity that requires contracts.Every regulation passed by Congress or a legislature requires people to hire lawyers. But the regulations are promulgated by government, not the Bar Association.
Most lawyers toil away doing work that is mundane, usually helping the business of commerce to proceed.
In my 37 years as a lawyer, I have had one goal: help my clients solve problems that I didn't create.
Edited on July 2, 2012 at 10:59pmJun '10
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
The truth is that liberals desire wealth, power and status as much as everyone else. They have created their own gang of ruling elites where admission is determined by ideological zeal.
The conservative by contrast must be faithful to abstract concepts like liberty guaranteed by the rule of law. There are no social promotions for being conservative, only the solemn and often solitary pride in having done the right thing.
It looks like John Roberts opted for social promotion over principle. We'll know for sure when he starts driving a Toyota Pious.