Supreme Questions

The Draft Lottery for a Chance to Ride the Bench


The big story of the moment–there’s always a “big story”–is the pending appointment of Sandra Day O’Connor’s successor to the Supreme Court. While the NBA held its draft last week, the White House is now moving faster than the New York Knicks’ front office to select the best lottery pick for an even more important court. A gusher of interest group reaction and partisan commentary erupted seconds after her announcement on July 1, and the speculation about the “what ifs” was a large part of it. Who will it be? Is there a “slam-dunk” candidate out there? Will Bush choose a “hard-right” candidate or a “mainstream conservative?” Will the Democrats filibuster? And so on.

Of course, the answers to these questions matter. Every Justice’s character and ideological inclinations can influence major judicial decisions for decades. This is especially so concerning the replacement for the O’Connor “swing” seat.

Yet there are certain immutable elements here. First, Bush almost always plays to his conservative base. It will be a major surprise if he does not do so now, with conservatives having waited many years for the opportunity to change the Court’s direction. The President needs the Right’s backing more than ever, not because he is facing an election but because he is weaker than at any point in his two terms. Little has gone well for the White House since Bush took the oath for Term Two.

Second, barring scandal or calamity, Bush will see his choice confirmed. Either the Senate Democrats will capitulate outright, in the wake of the “Gang of Fourteen” agreement, or the nuclear option will be invoked by the GOP. Given the number of well-funded interest groups involved on the Left, the nominee had better be very clean, however. Any indiscretions will be front and center, sooner rather than later. If there is any substantial reason to do so–and maybe even if there isn’t–the new nominee may well be Borked. Of course, as Clarence Thomas proved, a nominee can now survive a “Borking.” And the Bill Clinton precedent makes that even more likely.

Third, the eventual nominee will continue the stealth trend. He or she will claim ignorance on a wide range of surprising matters; refuse to take any public stand on anything controversial; and pretend that every future judicial decision is up for grabs. This worked for Clarence Thomas, who claimed he had no view at all on Roe v. Wade–when any sentient being living in the U.S.A. over the past few decades has developed a position on the case. Both Clinton appointees, Ruth Bader Ginsburg and Stephen Breyer, also posed as neutral nominees with no formed opinions. Predictably, Thomas has almost consistently sided with the conservative bloc, while Ginsberg and Breyer have been steady liberal votes on the Court. Nomination battles for the Court are pure Kabuki Theater in the post-Robert Bork and Clarence Thomas hearings era.

Fourth, all the effort expended by both sides may not matter if this Justice, like about a quarter of confirmed nominees in the last half-century, ends up evolving from conservative to moderate or liberal. These evolutions take many years, sometimes decades, but they are undeniably a part of the Court’s history. Dwight Eisenhower called his appointment of Earl Warren “the biggest damn fool mistake I ever made.” No doubt, Ike and other Presidents have said the same thing over the years about Justices William Brennan, Byron “Whizzer” White, Harry Blackmun, and other Justices. Warren, Brennan, and Blackmun moved to the left–the usual direction, given the incentives provided by the news media and historians, while Whizzer White was a remarkable exception, shifting from a JFK New Frontiersman to a pro-life social conservative.

Despite the presidential track record, the Crystal Ball will wager that the new nominee will be no Justice David Souter, who quickly made fools out of the first Bush White House. George H. W. Bush and especially his chief of staff, John Sununu Sr., convinced Republican senators that Souter was a conservative, but the socially liberal New Hampshirite started voting with his fellow liberals on the Court within a short time, and even sided against his sponsor’s son in Bush v. Gore in 2000. (One suspects that Bush Sr. has used language that is far stronger than Eisenhower’s to depict Mr. Justice Souter, at least in private.) Still, the new Justice-designate might turn into a Sandra Day O’Connor or Anthony Kennedy in time. Who can predict the issues before the Court in twenty or thirty years’ time? And lifetime tenure with no retirement age means total independence from effective pressure of any kind. The “reward system” on the Court is very different from the system prevailing in a nomination battle. During the nomination phase, strict adherence to the ideology of your side–at least in appearances–is essential. Once the black robes are donned, the approval of society’s elites, including editorial and academic praise, is highly prized by most Justices. Did anyone seriously doubt that the Court would approve the McCain-Feingold campaign finance legislation, despite its highly questionable limitations on free speech, given the drumbeat of backing from the opinion elites in the nation’s capital plus the editorial pages of the New York Times and the Washington Post–the two newspapers most closely read by the Justices?

The earlier mention of Justice Kennedy is yet another reason to doubt that this appointment will have the drastic changes on the Court that some predict. Kennedy has already alienated conservatives with his critical Court vote striking down sodomy laws and later the death penalty for juveniles. By now, Justice Kennedy has realized two things: (1) He will never realize his ambition to be Chief Justice; and (2) He is well positioned to move into O’Connor’s “swing slot” on the Court, making and breaking judicial majorities at will, and garnering for himself the media praise reserved for those who, like O’Connor, position themselves as “reasonable moderate-conservatives.” Here’s betting Kennedy’s leftward drift will continue. Only the most extraordinarily naive believe that Supreme Court Justices are motivated solely by their philosophies and the law. Every one of them has an eye on history’s judgment, and some change in the direction of the elite publics whose attentions they crave.

As for O’Connor, she may have retired mainly because of her desire to care for her ill husband, but her example of stepping down at age 75 is one worth remembering and copying. Having Justices serve into their eighties and even nineties is a highly questionable practice. Current examples include Chief Justice Rehnquist (age 80) and Associate Justice John Paul Stevens (age 85). No one’s stamina and mental acuity will be as great at these advanced ages, no matter how gifted a legal mind they may have. Furthermore, increasingly and inevitably, Justices become out of touch with younger generations as well as changing notions of law and culture. If this trend toward the Supreme Court-as-retirement-home continues, sooner or later the country will consider term limits for the Supreme Court or a mandatory retirement age, or both.

In the meantime, before offering any more commentary, your contrarian Crystal Ball will gladly await the announcement of the nominee. Most of what is said before then is DOA at that precise moment anyway.

What’s next?

Supreme Court nominations have become akin to national campaigns, but the next true election campaign is in 2006, and next week it will be time to update the races for Governor and Senator.

It’s much too early to know for sure, but it’s starting to look like Ohio will be Ground Zero for the second straight election. Having narrowly given the Presidency to George Bush in 2004, the Buckeye State could, might, possibly will be the site of a party turnaround in 2006–a shift to the Democrats with real implications for the 2008 presidential wars. The likely emerging Democratic ticket of Congressman Ted Strickland for Governor, and Congressman Tim Ryan for U.S. Senator will be a strong combo, especially in the wake of GOP Governor Bob Taft’s unpopularity and a string of Republican state scandals. More on this next week…