Dispatches from the Creation Wars

Will Miers End Up Being Judicial Liberal?

Posted by Ed Brayton on October 11, 2005
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Jim Lindgren of the Volokh Conspiracy has an interesting post examining what sorts of nominees ultimately end up drifting to the left once they’re on the court. He looks at Republican court appointees since Eisenhower, who famously nominated the men he called his two greatest mistakes, liberal judicial heroes Earl Warren and William Brennan. Likewise, Richard Nixon appointed Harry Blackmun, Ford appointed John Paul Stevens. Reagan appointed O’Connor and Kennedy, both moderately conservative but not the sort of ideological conservatives like Thomas and Scalia that the right hopes for.

The only two who haven’t disappointed conservatives greatly during that time are Scalia and Thomas. And Lindgren points out what set them apart before they were nominated:

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.

I reiterate what I said before: for those liberals in the Senate, and their supporters, who care only about outcomes and not having the court shift to the right in the wake of O’Connor’s retirement, your best bet is to get behind Miers fully and confirm her. She really is far more likely to drift to the left on the court than almost anyone the President might nominate in her place if her nomination is withdrawn due to opposition. A Luttig or McConnell is much more likely to be consistently conservative because, like Scalia and Thomas, their views have been forged in public battle with other legal scholars. If your concern is having the best legal minds we can find on the court, as I am, this probably seems like a bad idea. But as a matter of practical politics, it makes perfect sense.

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Comments

  1. #1 flatlander100
    October 11, 2005

    Ah, we disagree again. As a matter of practical politics [from a Democratic POV], supporting the Miers nomination does not make perfect sense. Just the opposite. Demanding that nominees meet high standards of preparation for service on the court, regardless of their political affiliations or presumed opinions regarding specific issues likely to come before the Court, is pratical politics. Or have we completely abandoned the notion that good governance is, in both the long and short run, good politics? Maybe we have.

    One of the things that drives me nuts about what passes for “leadership” [politely so called] in the Democratic Party these days is its penchant for wetting a finger and holding it up to catch the latest, gentlest ebb and flow of public opinion before expressing an opinion about anything. It has cost us heavily at the polls. And deservedly so. The endless poll-watching and dithering about how every vote, every stand, every statement “may affect us” that silenced the Democratic leadership [such as it was] on the invasion of Iraq is the best and most painful example [for the party and the nation] I can think of. Just from the “practical politics” POV, think how much better off the Democratic Party might be today if its leaders had opposed invading Iraq on such shoddy grounds as the President and his hench-persons offered. (In re: hench=persons. Told you I was a liberal.)

    Good governance is good politics. Even for Democrats. And all the time. And good governance requires Senate Democrats to oppose Ms. Miers regardless of how they think she might vote, or how much worse they think the next Bush nominee might be on the issues. “Unqualifed but more likely to vote our way more often than whoever Bush would appoint next” is a laughably weak reason to support a nominee’s elevation to the Court. Ever. This endless failure of the leadership to take a stand on anything without brooding over the political consequences is not only disturbing to this New Deal [and Yellow Dog] Democrat, it is politically just plain dumb. So long as the main topic of debate among party leaders is “what do we have to say to return to power,” they will not be returned to power. Or maybe they will. Bush may in fact screw things up to the point that not even Democrats could lose. But if they are returned to power on that basis, they shouldn’t be. And they won’t hold it long.

    End of sermonette from the unreconstructed left.

  2. #2 Ed Brayton
    October 11, 2005

    I agree with you flatlander, which is why I was specific in saying that those who are interested only in the outcomes of cases and the balance on the court. Of course one can make a good argument, as you have here, for a practical politics driven by something other than short term, facile considerations.

  3. #3 spyder
    October 11, 2005

    Those on the right who vocally oppose Miers because she has failed to read properly on their shards of very conservative litmus paper, seem to desire she be part of their movement to accomplish their agenda. I came across this ditty from Pat Robertson today, clearly expressing his idea of what should be done:
    “The strategy against the American radical left should be the same as General Douglas MacArthur employed against the Japanese in the Pacific . . . bypass their strongholds, then surround them, isolate them, bombard them, then blast the individuals out of their power bunkers with hand-to-hand combat. The battle for Iwo Jima was not pleasant, but our troops won it. The battle to regain the soul of America won’t be pleasant either, but we will win it. ”

    Assuming he means to include everyone left of center, as well as all those not part of his brands of christian sects, the role of Miers on the SCOTUS becomes pivotal to all of us, no matter where on the spectrum we fall.

  4. #4 Ed
    October 12, 2005

    I didn’t realize the analysis was all that difficult. Basically, anyone who has great wit about them, when put on the Court, drifts to the left, if they’re not already there. That’s because the Court protects the Constitution, which is by conservatives’ definition a leftist document.

    So any decision that comports with the Constitution is “drifting left.”

    That’s how they manage to label Hugo Black, Potter Stewart, Byron White, Earl Warren, Warren Burger, Sandra O’Connor and William Rehnquist as “drifters.”

  5. #5 Ed Brayton
    October 12, 2005

    Okay Ed, we gotta get your settings changed in Typekey so it shows your full name or people are gonna think you’re me when you’re commenting. Not that I mind being confused for you, of course, but if Frank Beckwith can’t tell us apart I’m not sure most readers will either.