Why are Republicans so awful at picking Supreme Court justices?

White House/Pete Souza

President Barack Obama talks with Justice Sonia Sotomayor prior to her investiture ceremony at the Supreme Court September 8, 2009.

Article Highlights

  • More often than not, Republicans appoint justices who vote with the other side on critical decisions. @marcthiessen

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  • Past 4 justices appointed by Democrats- Ginsberg, Breyer, Kagan & Sotomayor– have been consistent liberals on the bench

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  • Legal and political culture pushes the #SCOTUS to the left @marcthiessen

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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.

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. 

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.  Conservatives are pariahs if they vote against the left on certain issues. But if they crossover vote with the left, they are hailed as statesmen. Just look the pre-emptive attacks on the Roberts Court when everyone thought it was about to strike down Obamacare — and contrast that with all the accolades Roberts is now receiving from his erstwhile critics.  Before the decision he was threatening to plunge the nation into a political crisis. Today he is praised for his “humility,” “restraint,” being “brave” and “judicial modesty.” Meanwhile, many conservatives are twisting themselves in knots to defend or explain his vote. Not a chance the left would do the same if one of the court’s liberals had voted to overturn Obamacare. There is no penalty for voting left, but there is for voting right.

Another factor is that liberal Supreme Court nominees can tell you precisely how they stand on key issues and still get confirmed. 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.

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. During his confirmation hearings, Roberts famously compared the role of a judge to that of a baseball umpire whose job “is to call balls and strikes.” This was taken as a promise that, as President Bush put it, “he’s not going to legislate from the bench.”

But legislate from the bench is exactly what Roberts did last week. The law’s proponents consistently rejected the notion that the individual mandate was a tax. But Roberts effectively redrafted the statute, making the mandate a tax in order to declare it constitutional. As Justices Scalia, Kennedy, Thomas and Alito wrote in their dissent, “to say that the Individual mandate merely imposes a tax is not to interpret the statute but to rewrite it.” This, they added, “carries verbal wizardry too far, deep into the forbidden land of the sophists.”

That is the kind of sophistry we expect from liberals. The left sees the law as a tool of social justice — so they start with the desired outcome and then come up with legal reasoning to justify it. That is what Roberts did last week. He decided he wanted to uphold Obamacare and rewrote the statute to fit that outcome.

There is informed speculation in conservative legal circles that a close reading of the dissent shows Roberts had intended to strike down Obamacare, but flipped his position at the last minute. We don’t know if he was suddenly convinced by his liberal colleagues, or simply had a failure of nerve. But the challenge for conservatives is clear: We need jurists who not only have a philosophy of judicial restraint, but the intestinal fortitude not to be swayed by pressure from The New York Times, the Georgetown cocktail circuit and the legal academy.

Roberts’ 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.

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Marc A.
Thiessen

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