Supreme gamble
How selecting Supreme Court Justices has become a roll of the dice
Mark Davis, Correspondent
Each fall, former United States Supreme Court Justice William Brennan would ask his new law clerks if they knew the most important principle of constitutional law. He would then hold up five fingers and proceed to explain that five votes could do anything in the Supreme Court -- referring to the fact that all it took to rule on a case in the nine-member court was a five-vote majority.
While in theory the Supreme Court eschews partisan politics and decides cases based strictly on an impartial analysis of the Constitution, this anecdote reflects the widely held belief that the Supreme Court is in fact a political body that renders decisions that are often grounded in the ideological beliefs of its members. As such, presidents seek to appoint judges who share their political beliefs. The stakes are enormous as justices (possessing lifetime tenure) rule on the most pressing issues in our society and remain on the bench long after the presidents who appointed them leave office.
One would therefore assume that presidents are able -- with relative ease -- to select justices who will further their political agenda. However, this has not been the case. Republicans have named 13 of the last 15 members of the Supreme Court. Yet, to the great dismay of conservatives, many key liberal rulings from the '60s and '70s remain entrenched on issues such as school prayer, affirmative action and abortion, this month's decision to uphold a ban on a type of late-term abortion notwithstanding.
Why have Republicans been unable to effect a more radical shift in the court's jurisprudence despite their overwhelming success in winning presidential elections over the past 35 years?
This is the question that Jan Crawford Greenburg attempts to answer in "Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court." A veteran Supreme Court correspondent, Greenburg interviewed nine current and former justices as well as numerous White House and Justice Department officials from four different presidential administrations to chronicle the factors leading to each appointment to the court over the last 25 years. She also provides an insider's account on some of the most important cases decided during that time. Her behind-the-scenes look at the rulings in Bush v. Gore (in which the court essentially handed the 2000 presidential election to George W. Bush) and Planned Parenthood v. Casey (in which the court reiterated the existence of a constitutional right to abortion) are of particular interest.
Still, the crux of her book involves the failure of Republican presidents to overturn key Court decisions. Greenburg posits several explanations for this phenomenon. First, the Constitution requires that justices must be confirmed by the Senate, a stumbling block for ideological nominees with long paper trails. The most notable example was Robert Bork, who was pilloried in 1987 by Democrats along with a vast array of liberal interest groups. The conventional wisdom since the Bork debacle has been to find "stealth candidates" -- that is, nominees believed to be ideologically compatible with the current administration but lacking a paper trail that can be used against them.
The problem is, such nominees can prove the White House's estimation of their likely voting patterns wrong. Consider Harry Blackmun and David Souter. Blackmun was appointed by Richard Nixon, who promised to appoint strict constructionists to the Supreme Court in response to the liberal constitutional revolution set in motion by the Warren court. Blackmun, a childhood friend of highly conservative Chief Justice Warren Burger, was thought to be such an ideological clone of Burger that the two were dubbed the "Minnesota Twins." Four years later, Blackmun authored the highly controversial decision legalizing abortion, Roe v. Wade, which conservatives have decried ever since as the symbol of the activist judiciary's willingness to invent constitutional rights.
Souter -- a New Hampshire judge with little experience in the federal judiciary but assumed (incorrectly) to be reliably conservative -- was championed by advisers to George H.W. Bush as the perfect stealth nominee. However, once on the bench, to the fury of Republicans, Souter soon began siding regularly with the court's liberals, revealing a judicial philosophy that was essentially unexplored by the White House at the time of his nomination.
A second explanation advanced by Greenburg to explain court dynamics is the so-called "Greenhouse Effect" -- a popular euphemism for the pressure exerted on new justices by influential liberal members of the media, exemplified by New York Times columnist Linda Greenhouse. Many Republicans blame this for the evolution in judicial philosophy of Reagan appointee Anthony Kennedy.
Believed at the time of his confirmation to be a fairly consistent conservative, Kennedy has infuriated conservatives by joining the court's liberal wing in key rulings on such hot-button issues as abortion, school prayer and gay rights. A number of his public comments, Greenburg notes, have led many to believe that some of his votes have been influenced, at least in part, by his recognition of how they would be perceived by the media and by legal scholars.
A third reason, largely unaddressed by Greenburg, is perhaps the most basic one. While most appointees have highly political backgrounds, once they become justices they renounce all overt partisan ties. Freed from political pressures, they are able to take seriously their independent status and to decide cases without regard for political consequences.
While Greenburg is correct that Republicans have largely been disappointed by their party's nominees, not all Republican picks have backfired. Antonin Scalia (also appointed by Reagan) is revered as the patron saint of conservatives for his strict adherence to the notion of originalism -- the mode of interpretation which preaches that constitutional provisions must be interpreted solely by reference to the intent of the men who originally drafted them. Greenburg notes, however, that Scalia's hardline approach also hurt the conservative cause by alienating Sandra Day O'Connor and pushing her from the right on key issues including abortion and affirmative action.
George H.W. Bush's appointment of Clarence Thomas to replace liberal icon Thurgood Marshall provides another rare example of a recent Republican president getting the precise type of judge he thought he was appointing. Here Greenburg debunks the cruel caricatures of Thomas as Scalia's lackey. In fact, she argues, Thomas is an independent thinker who is more likely to bring Scalia to his side than vice-versa. Greenburg treads the most new ground in her discussion of the recent appointments of John Roberts and Samuel Alito. Both Roberts and Alito were highly scrutinized by the White House before being nominated and Greenburg -- like many Republicans -- predicts that they may finally tip the balance of the court in favor of the conservatives.
The court's recent decision upholding a ban on so-called "partial-birth" abortion (in which Alito provided the fifth vote in a case in which O'Connor would likely have gone the other way) suggests Greenburg may be right.
(Mark A. Davis is an attorney in Raleigh.)