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:
Dec '10
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
All of humanity is fallen. The difference is that liberals run with it while conservatives fight against it and often fail.
Oct '10
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
Another try: Conservatism upholds strict moral standards and governmental restraint. The basis of morality is the definer of moral truth, aka; God. The basis of governmental restraint is that same morality.
When America began to choose against God, they began to choose against those things that are the very basis of conservatism. So, not only in the White House and the congress, we also got what our heart voted for in the Supreme Court.
Every decision we make in our heart is a seed planted. We are now sowing the seeds we have, as a nation, sown. Even people who honor God in their lives must be upheld by a vast field of others who hold the same conviction.
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
The reason is, I think, simple: liberals want to rule. Republicans just want to hold office. We have yet to see a Republican President take Supreme Court appointments with sufficient seriousness. It rarely crosses a Republican's mind that what he does and fails to do sets the stage for the country's future. This should be no surprise. Most of them, if they have a background outside the more mundane aspects of law, are businessmen, and businessmen have few principles. In the fact of evil, they are inclined to temporize. The folks who come out of the labor unions and the universities are far less inclined to do so.
Nov '11
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
To spin this it another way, it's elitism, not just liberalism, that's the problem.
If I'm right in that assessment, it shouldn't be surprising that "conservative" justices often grow more "liberal" over time, as the prestige and status of their position goes to their heads.
Jun '12
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
And here's what I would have liked to see in response:
"That's great, Mr. Kennedy, because we already live in an America where squalling babies are ripped from their mother's wombs and subjected to 'Cranial Decompression', blacks are herded into inner city ghettos by rich whites, prepubescent children are taught how to engage in sexual activity and Federal funding goes to artists who urinate in jars containing religious icons."
Throw this stuff right back in their face.
Apr '12
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
I agree with Paul Rahe's point (for instance, I do not think Romney has any particular knowledge or inclination to engage in a court fight if he becomes President.
There is, however, another point relating to the approach to the law taken by Supreme Court justices of liberal v non-liberal (I don't use the term conservative for the reasons stated further below).
Liberal justices have a very specific policy agenda to implement based upon a vision of government where the default is that the government can act except for certain limited exceptions which they, the liberal justices, will carve out. The The Commerce Clause and abortion are absolutely central to this vision (the first in terms of action and the second in terms of restrictions on action by government) and they will not waver. On issues that are not central to this agenda they will often combine with the non-liberal justices.
Non-liberal justices have differing approaches to their vision which makes them weaker as a unitary voting bloc. Some, like Kennedy, have developed more of a libertarian than traditionally conservative approach to jurisprudence leading to results discomfiting at times to liberals or conservatives.
Dec '11
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
Fricosis Guy: 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.
Unfortunately, I can't read everything, so if you would be so kind, would appreciate a synopsis of Yoo and Epstein's previous misgivings re: Roberts.
Thanks!
Edited on July 2, 2012 at 11:50pmApr '12
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
More on my pri0r post:
Some (Roberts) focus on deciding on the narrowest possible grounds. All of them, with the sometimes exception of Thomas, revere precedent, including New Deal precedent. All of them buy into the post-New Deal bifurcation of Constitutional liberties into those which the Court will pay attention to and those which it will disregard. Thomas and Scalia are originalist while the others are not and even Thomas and Scalia practice different types of originalism. Given this, there are multiple opportunities for one or more non-liberal justices to be picked off on crucial cases.
Because the liberal justices focus on policy outcomes, not on differing doctrines of jurisprudence like the non-liberals and they have the post-New Deal precedents on their side it is easier for them to act in a united and predictable way.
Apr '11
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
I think another reason that GOP-nominated Justices do not remain reliable conservatives is not only hostile political and media circles, but also a hostile professional environment.
Going to law school in DC was to be taught why Scalia was always wrong and Thomas was stupid. It was shocking that professors would encourage the mocking of sitting Justices, with classmates trying to get a laugh by sarcastically offering that the alternative to proper statutory interpretation with legislative history was to turn to an 18th Century Dictionary. (Given that Obamacare was saved by ignoring the legislative history, I wonder what they will teach now.)
There are few professional organizations that espouse conservative views (e.g., the Federalist Society) to compete with the many on the Left.
Although conservatives are probably no less well represented in the legal profession than in the public generally, they are completely outnumbered organizationally and institutionally within the legal profession.
This is not merely a question of resisting the tide of popular opinion, but also the flow of scholarly and professional thought. When the best minds in your profession are telling you that you are wrong, it takes great character and stubborness to stick to your guns.
Jun '10
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
I think you're all overlooking a key factor: control of the Senate.
Ginsberg and Breyer were both nominated before the '94 election, when the Dems had a 57-43 majority. Kagan and Sotomayor were confirmed by a fillibuster-proof 60-40 supermajority.
But the Dems also had solid 55/56 member majorities during the confirmation hearings for Kennedy, Souter, and Thomas. Souter was supposed to be a "stealth" candidate, who was so deep under cover that he turned out to be a double agent. And we all remember how the Thomas hearings turned out, even though he eventually got approved.
Point is, when your own party controls the Senate you can nominate whoever you want, but when the opposition controls the Senate you have to try to find a more moderate or compromise candidate acceptable to both sides.
Apr '11
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
It's about sample size. Expand the sample a bit and you get, on the Republican side, in descending order of success: 43 (one solid success, one moderate success), 41 (one huge success, one failure), Nixon (one bad, two decent, one moderate), Reagan (two moderate failures, one hit), Ford (one failure).
The Democrats have had two Bush 43 level successes (Obama and Clinton), two Nixon level success (LBJ and JFK), and Carter with no one. There's no pattern there, just two good Presidents on their side, one on ours.
Happily, Romney's long been interested in the judicial nominating process (his reform of the Massachusetts system was one of his bigger achievements). The Federalist Society and Republican National Lawyers Association, the two chief educated bastions of Thomas and Scalia-like thought, have both been solidly behind Mitt for years now. A major portion of his success in business came down to his ability to select people with the right character and ideology for a particular job, and conservative legal minds that know him well, such as Robert Bork's, give us cause to be confident that we'll have an Obama/ Clinton equivalent on our hands, not an LBJ.
Jun '11
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
I commend the latest edition of the Law Talk podcast, though Epstein has ranted about Rehnquist many times (here's a link to a Hoover article of his pre-decision).
EThompson
Fricosis Guy: 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.
Unfortunately, I can't read everything, so if you would be so kind, would appreciate a synopsis of Yoo and Epstein's previous misgivings re: Roberts.
Thanks! · 36 minutes ago
Edited 35 minutes ago
Apr '11
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
Joseph Stanko: I think you're all overlooking a key factor: control of the Senate.
Ginsberg and Breyer were both nominated before the '94 election, when the Dems had a 57-43 majority. Kagan and Sotomayor were confirmed by a fillibuster-proof 60-40 supermajority.
But the Dems also had solid 55/56 member majorities during the confirmation hearings for Kennedy, Souter, and Thomas. Souter was supposed to be a "stealth" candidate, who was so deep under cover that he turned out to be a double agent. And we all remember how the Thomas hearings turned out, even though he eventually got approved.
Point is, when your own party controls the Senate you can nominate whoever you want, but when the opposition controls the Senate you have to try to find a more moderate or compromise candidate acceptable to both sides. · 3 minutes ago
I'll defend my sample size point as a concurrence to Joseph's, but if you combine the two arguments, his portion is the stronger.
Edited on July 3, 2012 at 12:50amMay '11
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
I'm alarmed that so many people are lamenting the failure to approve Bork for the court. He might have better than what we've just seen from Roberts, but most of his legal philosophy is more than nutty. He believes in almost unlimited government power over the individual. His views on speech and police powers are truly scary.
Dec '11
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
Thanks much for the link!
Dec '10
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
Diane Ellis, Ed.
Why? Why do conservatives so often act as though they're ashamed of the Constitution? Is it a lack of conviction?
This is the central question that drew me to libertarianism and ultimately Ayn Rand's Objectivism.
Basically, because the foundation of the Judeo-Christian faith is altruism (IE everyone else before self), Republicans have a hell of a time defending the individual take-care-of-yourself nature of free enterprise and working for self enrichment in general.
Their hearts aren't in it, because all their morality is telling them that making money and taking care of yourself instead of everyone else is bad bad bad.
Socialism meshes very well with the altruistic moral code of the major religions, and since Republicans are very much more likely to be men of faith than Democrats, they believe that the morally right thing to do is to put everyone else before self, but then they also have to try to defend the profit motive and free markets in general, which seem antithetical if one doesn't think about the problem very much.
IMO, that more or less explains why Republicans are such half-hearted defenders of freedom.
Dec '10
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
This, sir, is the rudest thing I've ever seen you say, and as a businessman myself, I am gravely offended.
SOME businessmen are without principle.
Just like SOME academics are useless fools who are prone to bloviating.
See how that works?
May '10
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
Pretty much.
Nov '10
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
Perhaps it's for the same reason for several decades the conservative political party in Canada was called "Progressive Conservative". When the PC's died in the 90s they had to merge with the truly conservative Reform party, forming today's (adjective-free) Conservative Party.
I have some hope that the Tea Party is fulfilling much the same function. For many years the only meaningful (but unhelpful) designation for nonconservative Republicans or Progressives was "RINO". Tea Party, with it's originalism and insistence on looking seriously at people's records, is a calling back to what Conservativism has always been.
Trouble is, by any measure, Romney isn't a true Conservative. No question he's light years more conservative than BHO. He may even be to the right of JFK (I doubt it). But even Reagan was not fully conservative; he had stripes. I think we have to regard Romney as "good enough" and trust in Tea Party and true conservatives to hold him accountable for his commitment to stand for conservative principles. While we've got a pretty good stable for the next three election cycles, I don't see many genuine conservatives in the bunch.
Apr '11
Re: Why Are Republicans So Awful at Picking Supreme Court Justices?
Have not the vast majority of SCOTUS appointments been made over the last 30 years with a Democratic-led Senate presiding over the confirmation hearings?Surely that fact alone must mean that the vast majority of SCOTUS appointments tend to be made with the assent of the then-applicable Democrat leadership in the Senate. So small wonder that solid liberal nominees get through (does anyone remember one who didn't?) while GOP appointees can only be as conservative as the Dems will tolerate.