Balkinization: Question: Why did Roberts and Alito turn out so conservative? Answer: Partisan entrenchment

Question: Why did Roberts and Alito turn out so conservative? Answer: Partisan entrenchment

Over at Slate, Emily Bazelon points out that moderate legal academics were completely bamboozled by John Robert's understated and lawyerly demeanor. They figured that because he had the right temperament he wouldn't end up that far to the right. As Emily points out, this was just wishful thinking. We've seen the results this term. Roberts and Alito have taken very conservative positions in a number of cases; they have done so by twisting previous precedents rather than directly overruling them.

There was, in fact a structural explanation for these results that should have been obvious to anyone at the time. It was certainly obvious to me. First, President Bush had made clear throughout his administration that he planned to engage in a policy of partisan entrenchment. He wanted to appoint very conservative people to the federal courts who would further his policy objectives, and who would remain in place for a very long time. Second, President Bush faced a Senate controlled by his own party. The Congressional wing of the Republican Party was also very conservative and it also wanted a conservative judiciary. Indeed, Congressional Republicans helped bring down the Miers nomination because they feared that she wasn't conservative enough!

Given the combination of these two factors, it would have been miraculous if anyone other than a very conservative Justice emerged from the nomination process.

After the 2006 elections, the Democrats control the Senate. If Bush were to get another Supreme Court appointment, the structural elements in play would be very different. Bush is very weak in the polls and he faces a Senate controlled by the opposition party. It is likely that, under these circumstances, he could only succeed in nominating a relative moderate to the Supreme Court, someone like Kennedy, but certainly not someone like Roberts or Alito. I use Kennedy as an example because Kennedy was nominated in 1987 when President Reagan was weakened by the Iran Contra Scandal, and faced a Democratic Senate. You may recall that Kennedy was Reagan's third choice-- the Senate rejected Robert Bork, a strongly ideological conservative, and Douglas Ginsburg withdrew.

What is the moral of this story? Pay more attention to the structural background of judicial nominations, and less attention to whether a nominee sounds like a nice guy. Nobody should have been fooled by the Roberts nomination. If we pay attention to how partisan entrenchment works, we will follow the Who's advice-- we won't get fooled again.

Posted 1:58 PM by JB [link]

Comments:

Well, congratulations, it was certainly obvious to you and many others. However, now that they control Congress, the Democrats can't even defund Cheney's office. Plenty of Democrats voted against their nomination. So, what difference would it have made even if it had been obvious how Roberts / Alito were going to rule back then?!

# posted by

Charles : 2:56 PM

All but one of the Senate's then-majority Republicans voted for Alito's confirmation, while all but four of the Democrats voted against Alito -- even if ALL the Democratic Senators had voted "no" Alito would still have been confirmed with four votes to spare -- I am hoping we get another opening from the remaining liberal Justices so we can test your theory : )

# posted by

Charles : 3:02 PM

Professor Balkin: Pay more attention to the structural background of judicial nominations, and less attention to whether a nominee sounds like a nice guy.

That should go without saying, especially in a venue like this.

Ok, back to reality now. Not only were some of us not fooled regarding the level of partisan entrenchment in action with respect to these men when they were nominees, some of us were similarly not fooled by a complicit media which tried to portray them in a less partisan light. If they are dismantlers instead of bomb throwers it isn't because they are less subservient to the party line, but merely that their sense for strategy suggests dismantling is of sufficient superior power as to warrant the extra effort required thereby. Note, that's not the same as saying they are avoiding big fights, but merely that they see victory through attrition as more efficient.

# posted by

Robert Link : 3:14 PM

Of course, the Dems had enough votes to deny a cloture movement, which could have held up the nomination indefinitely. It was the threat of this that lead the Republicans to threaten the "nuclear option" of revoking the filibuster rules so they could get their way.

What is it with these guys; ask them to follow the rules which they championed when they were down and they either ignore them or threaten to blow up the entire structure so they can get their way. I've seen more mature behaviour among ADHD children that that expressed by Republican leadership.

# posted by

Fraud Guy : 3:53 PM

This development provides clear support for your theory of partisan entrenchment. The far right had its narrow window of opportunity to stack the Court with conservatives and took it. There really wasn't much the Senate Dems could do. I don't see any plausible way the Dems could have opposed the eminently qualified and likeable Roberts--Bush made a savvy choice there.

# posted by

Adam : 4:12 PM

Professor Balkin:

I wish I shared your confidence in the ability of GOP presidents to nominate actual conservatives/libertarians to the Court.

GOP Presidents have won 7 of the last 10 elections and have only managed to nominate 5 genuine conservatives (of which four remain after Renquist retired and passed away) and one part time conservative in Kennedy. I will agree that Mr. Bush was by far the most successful in this regard, but he is the 4th GOP president to try.

Your partisan entrenchment theory works better for Dem Presidents, who were 100% successful in getting reliable leftists on the Court.

I suspect the differential is because GOP Senates will approve nearly any leftist appointee nominated by a Dem President because they generally follow their ideology about deferring to the President on his nominees so long as the nominee is basically qualified as a judge.

The Dems are far less deferential to conservatives starting with Bork.

Also, the bar leans much further left than the population at large, so where the judge has no track record, the odds are much better that the judge will end up being ideologically left than right.

In any case, it would be extraordinarily difficult for Bush to get another true conservative through the Dem Senate if there were a retirement in the Court;s left this summer. He would have to nominate someone like Janice Rogers Brown and then smear left ideological opposition to her as racism and sexism.

# posted by

Bart DePalma : 4:18 PM

This cheapens the merit of lifetime appointments and office during good behavior. Those ideas are fine for lower federal courts, but the SC is a large social policy making body. In a democratic country – I understand the concept of a constitutional democracy - these types of decision should be reflective of the will of the people. Currently they are not. As an indicator, seven of the nine current justices were appointed by Republicans. This is largely due to the nomination process we have. This process is dysfunctional when it comes to the SC if you believe in the ideals of what a SC justice should be. This process was created by men who didn’t envision the role political parties would play in our country’s future. As a matter of fact, they affirmatively distrusted political parties.

Acknowledging exceptions to the rule, politicians appoint justices that share their agenda and vision. The justices then carry out that agenda and vision. The lifetime appointments and office during good behavior allow one branch of the country to be controlled, without any real checks as long as the opinions aren’t absurd, for a significant period of time. If the political climate changes, the SC can modify its opinions. Why aren’t SC justices elected? I know there are some obvious problems… off the top of my head I see campaign contributions, erosion of the vision of judges as neutral (*maybe* they are party neutral, but every person makes decision based on their own beliefs – which in this case are known before appointment), and lessened judicial independence. However, I think these concerns could be addressed in a new process, leading to a more democratic and accountable court. It would require amending the constitution though, which means it will never happen.

I don’t promise careful proof reading or even proper spelling.

# posted by

Unknown : 4:39 PM

I'm not sure senators were fooled by demeanor. I suspect the Republicans were continuing their policy of supporting Bush no matter how extreme his policies -- something that is only now starting to break down. And the Democrats were scared they wouldn't get reelected if they joined a filibuster, which is what they should have done. (What were they saving that filibuster for, if it wasn't to protect the Supreme Court?) So the moderate Republicans and chicken Democrats talked themselves into thinking Alito and Roberts weren't too bad.
BTW, as near as I can tell there's only one real conservative on the Supreme Court: Kennedy. There are four ultra right conservatives -- Scalia, Thomas, Roberts and Alito -- but there opinions are far to the right of real conservatives. There are two liberals -- Ginsburg and Stevens -- and two moderates -- Breyer and Souter. Breyer occasionally comes down on the liberal side, while Souter is pretty much in the reasonable center -- they just look like real liberals by contrast to the extreme right wing side of the court.

# posted by

Nancy Jane Moore : 4:40 PM

Speaking of proofreading, I meant "their" not "there" in the sentence about the opinions of Scalia et al.

# posted by

Nancy Jane Moore : 4:42 PM

The Republicans desperately wanted the Democrats to attempt a filibuster of one of the nominees so they could pull out the nuclear option. It was not enough to have a conservative on the bench, only if it was clearly forced over on the Democrats against their will would the rejection of Bork be truly avenged.

OTOH, I do think conservative did us an unintended favor in opposing Harriet Miers. Better a solid independent conservative like Alito than a Bush hack like Miers. You may not care for Alito's opinions on abortion or affirmative action, but at least he is less likely to agree that the President is an elective dictator. That should be the critical issue these days.

# posted by

Essayist-Laywer : 4:43 PM

Or, instead, Democrats could have asked more pointed questions of Roberts and Alito instead of rolling over and playing dead. Then we would not have ended up with two pigs in a poke.

They had a perfectly good basis for doing so: an opinion by Justice Scalia rendered since the last Supreme Court confirmation hearing. In Minnesota Republican Party v. White, the Court ruled on first amendment grounds that a judicial candidate's impartiality would not be compromised if the candidate were allowed, during an electoral campaign, to speak out on subjects that could come up for adjudication, so long as no live case was discussed.

If the first amendment allows a person running for state court judge for a fixed term to do this notwithstanding the code of judicial conduct, there's no reason on earth why the Senate's Advice and Consent power (however hemmed in by cloakroom bartering) should have to yield to a candidate's feigned fear of compromising his independence in a confirmation hearing. In the latter context the democratic stakes could not be higher or the risk of hurting impartiality more chimerical (particularly where the "structural" situation is so transparent).

During the Roberts and Alito hearings I phoned the offices of several Democratic Senators on the Judiciary Committee pleading that they invoke Minnesota Republicans. I got bland assurances but in the end my efforts got nowhere. The lame hearings led ineluctably to black box confirmations.

Don't be surprised if the Republican Senators rely on Minnesota Republicans to insist on the right to grill a Democrat's nominee should the tables be turned. Like our new justices, they are adept precedent-dodgers.

# posted by

occasional observer : 9:37 PM

The Slate mistakenly focuses on Roberts when it was the Alito appointment that was the problem. Roberts is no different than the man he replaced, Rehnquist. In some ways, he may turn out to be better. But Alito was definitely far more ideological than O'Connor. That's where the stand should have been made.

# posted by

Paleo : 6:49 AM

Sunstein's analysis seems the most reasonable. It shouldn't surprise anyone that Roberts and Alito are conservative, as everyone would and should expect Bush to nominate justices that are as reliably conservative as Clinton's were reliably liberal.

If liberals were lulled into a false sense of security by Roberts' talk of "judicial modesty," then it's their own faults. He said he'd be "modest," not "moderate," and that's precisely what we got with him and Alito: two conservative justices who are more respectful of precedent than Scalia and Thomas.

# posted by

Unknown : 12:25 PM

The long-running debate over the usefulness of lifetime appointments has tipped, I think, and it's clear that twenty years is enough. It will be more than enough for the current crop.

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# posted by

Unknown : 3:29 PM