Tuesday, July 3, 2012

Why Marc Thiessen Is Wrong About the Supreme Court

"Liberal" Chief Justice John Roberts, eh?

Washington Post columnist and former Bush speechwriter and chief torture defender, Marc Thiessen, penned a column yesterday, where he attempted to make two related points, 1 of which is completely inaccurate, and the other which is ultimately proven incorrect due to the first point.

Anyway, Thiessen asks why GOP presidents are so bad at picking Supreme Court justices.
Chief Justice John G. Roberts Jr.’s decision to side with the court’s liberal bloc and uphold Obamacare raises an important question for conservatives:  Why are Republicans so awful at picking Supreme Court justices?  Democrats have been virtually flawless in appointing reliable liberals to the court. Yet Republicans, more often than not, appoint justices who vote with the other side on critical decisions.
So what he's really asking is "why isn't the GOP successful at packing the court with justices who are blindly partisan and wish to advance the goals of the conservative movement and the Republican party?"

He then notes of the justices appointed in the last 30 years, Democratic Presidents seem to be 4 for 4, appointing justices who are reliably center-left votes on cases, whereas Republican Presidents would seem to be only 3 for 7, when it came to being reliable center-right radical votes on cases.
So Democrats are four-for-four — a perfect record. Republicans are not even batting .500.

Why is the Democratic record so consistent while the Republican record is so mixed? For one thing, the whole legal and political culture pushes the court to the left. 
I would argue the Republicans have actually been very successful at picking conservative judges and moving the court to the right. I'm not sure what leftward drift Thiessen is seeing in recent Supreme Court decisions. This charts with the rightward drift of the politics in our country over the same period, that would place Barack Obama's politics on par with about where Richard Nixon's were 40 years ago on most big policy issues. Anyway, here's a chart from a Mother Jones article last week showing the rightward movement of the court over the decades.

As you can see by this chart, starting in the early to mid 1970's up through the present, the liberal and moderate justices on the court are getting much more conservative. The moderate justices today are more conservative than the most conservative justices were in the late 1960's. And the most liberal justices today are more conservative than the moderate justices were in that time period.

Thiessen continues comparing the confirmation process of Democratic-appointed justices vs Republican-appointed justices.
Another factor is that liberal Supreme Court nominees can tell you precisely how they stand on key issues and still get confirmed.

Liberal nominees can simply affirm liberal positions, while conservatives must speak cryptically in terms of their judicial philosophy. And as we saw last week, those philosophical statements do not necessarily indicate how they will vote on the bench.
This is true, mainly because the more liberal nominees are simply voicing desire to uphold existing court precedents, which in a weird way is the more small-"c" conservative legal position. If the more conservative justices actually stated a preference to overturn Roe v. Wade and potentially dozens of other 20th century precedents, shockingly they may find more resistance during confirmation hearings.

Imagine if back in 2005 and 2006 when Robers and Samuel Alito were going through confirmation hearings if they had told everyone that if they had the chance they would strike down the campaign finance laws on limits and disclosure. Do you think that would have helped or hurt their chances of being confirmed? Even though the Presidents and activists supporting your nomination are desiring a fairly radical restructuring of the social contract and campaign-financing system we've known for most of the 20th century, their nominees obviously have to clam up about it or else they won't get confirmed. Then that always leaves open the risk that the judge you are nominating may not be quite as radical as you had hoped he or she would be.

So the nomination process in these instances evolved into a game of cat and mouse for a week or two, while the nominee attempts to say as little as possible. Thiessen may not like it, but the country is not quite as conservative as he would like it to be. The Republican nominees are reflecting this reality by giving generic non-threatening responses.

Thiessen then ends with this:
Roberts’s defenders point to his many other conservative decisions and argue that he is not another David Souter or even another Anthony Kennedy. That may be true. But is that really the standard we want for a Supreme Court justice — they are not another Souter or Kennedy? Shouldn’t conservatives expect Republican presidents to do better and appoint another Scalia, Thomas or Alito? That shouldn’t be too much to ask.
Ruling out a judge for being to the left of Scalia, Thomas, and Alito, would also probably disqualify most potential nominees.

Many justices who were considered moderate when they were appointed, end up looking more "liberal" over time, as they stay the same and the court continues moving to the right.  The two most obvious examples of this are John Paul Stevens (Ford appointee), and David Souter (George HW Bush appointee). Both were thought of as moderate conservative justices when they were confirmed and were considered liberal justices when they retired. I still think John Roberts is very conservative. But given this conservative activist view of the purpose of the court, I wouldn't be surprised if the right begins referring to him as "liberal" or "moderate" Chief Justice John Roberts in a few years if he isn't as reliable a vote to repeal the 20th century. It seems Thiessen is already at that point.

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