Saturday, July 07, 2012

Being "Good" at Picking Judges

Mark Tushnet

Marc Thiessen has a remarkably stupid op-ed in today's Washington Post. asking "Why are Republicans so awful at picking Supreme Court Justices?" Its premise is that being "good" at picking Supreme Court Justices means -- by definition -- picking Justices who will vote in favor of the positions of the party whose President nominated them, whatever those positions happen to be. And, in particular, it means that a Justice will simply look at what the Party position is at the time a case comes before them, and will interpret the Constitution to validate that position.

Things don't work that way, though. Presidents pick nominees at a specific moment in time, and they do try to strengthen their party, over both the short and long run, with their choices. But, parties sometimes change in unexpected ways, and a nominee who is entirely in tune with his or her party's position when nominated might not be in tune with the party if its positions change. (See Richard Posner's comments on NPR on this.)

So, consider this possibility (unrealistic because the inquiries I'm going to describe are done through nods and winks, not explicitly): Suppose that in 2005 when the Bush administration was considering whether to nominate John Roberts to the Supreme Court, it was also considering making a substantial effort to get Congress to enact a national health care program along the lines touted by the Heritage Foundation and some other conservative think tanks, which would have had an individual mandate. And suppose the administration's judge-pickers asked Roberts, "We suppose you've read David Rivkin's arguments that an individual mandate would be unconstitutional under the Commerce Clause. If we do get Congress to enact a mandate under the Commerce Clause, do you think it would be constitutional? And, by the way, what if we're able to characterize the penalty for failing to buy health insurance as a tax? Would the statute be unconstitutional under the Tax Power?" I'm quite confident that an answer somewhere in the range between, "Of course it would be constitutional under either theory" to "Gee, those are hard questions, and I'd have to see the details, but at the moment I'm inclined to think that it would be constitutional" would have been entirely acceptable.

The only reason that Bush's judge-pickers were "awful" is that they didn't anticipate how the Republican Party's positions would change -- or that they didn't look for someone fairly describable as a partisan hack who would read the morning newspapers to find out what the Republican Party leadership thought and then write that into the Constitution. Instead, they looked for someone whose approach to constitutional interpretation was likely over the long run to generate results consistent with the views of important constituencies within the Republican Party. That's clearly what they got in Antonin Scalia and Clarence Thomas -- not people who were going to do whatever the Republican Party happened to want, but people who had deep-rooted views about the Constitution that were quite likely to be consistent with Party positions most of the time. Despite the Chief Justice's vote in NFIB, I'm pretty sure that that's what they got with John Roberts too.

One final point: Thiessen contrasts Republican failures with Democratic successes. The reason for the difference, though, is that the Democratic Party has changed less over the past couple of decades than the Republican Party has. (See Mann and Ornstein on that.) Which means that people chosen in the 1990s because they had constitutional visions consistent with those of the then-Democratic Party are still articulating views consistent with those of today's Democratic Party. (Thiessen apparently doesn't remember Byron White, who throughout his career was a good Kennedy Democrat, which made him "more conservative" by the time he retired because the Democratic Party had changed.)

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