Don't place all your hopes — or fears — on a new Supreme Court justice

Don't place all your hopes — or fears — on a new Supreme Court justice
© Greg Nash

It was a home run for the White House.

A senior Supreme Court justice — appointed by a Republican president but who joined the court’s liberal wing in the most controversial cases – had just retired. Seizing the opportunity, the president quickly nominated a young circuit court judge, a brilliant, ivy-league graduate who could serve on the court for decades.

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The White House spoke confidentially about the nominee’s constructionist credentials. This, after all, was not a judge who would “legislate from the bench.” Conservative groups and Senate Republicans also praised the choice. Senator Orrin HatchOrrin Grant HatchSentencing reform deal heats up, pitting Trump against reliable allies Dem lawmaker calls Trump racist in response to 'dog' comment PETA calls out Trump for attacking Omarosa as a 'dog' MORE (R-Utah), for example, hailed the nominee as “exactly the kind of person with a broad background that we need on the Supreme Court.”

 

Many on the left were troubled. Although the president insisted he did not ask the judge his personal views on abortion, Democrats were skeptical. Amidst fears that the nominee would be the fifth vote to overturn Roe v. Wade, abortion rights groups rejected the nomination. One Senator even predicted that the nominee would “solidify a 5 to 4 anti-civil rights, anti-privacy majority inclined to turn back the clock on the historic progress of recent decades.”

The year was 1990. The President was George H.W. Bush. And the nominee in question was David Souter.

As we now know, Souter was neither the conservative the right desired nor the final vote to overturn Roe. Indeed, two years after his confirmation, he joined the plurality in Planned Parenthood v. Casey, which reaffirmed the central tenets of the Roe decision. But after 40 years of Republican presidents nominating liberal justices (Earl Warren, William Brennan, Henry Blackmun and John Paul Stevens), Souter was the last straw. For conservatives, “No more Souters!” became a battle cry.

Today, however, conservatives are confident that Brett Kavanaugh is their man for the Supreme Court. And they have many reasons to be: Aside from being generally well known and well regarded in the legal community, early in his career, he clerked for Justice Anthony Kennedy and worked for Ken Starr during Bill ClintonWilliam (Bill) Jefferson ClintonPioneer of modern redistricting dies at 75 To reduce urban violence, let's consider the real causes — not guns, police or 'low' taxes Political analyst: Trump's attorneys 'should be disbarred' if they allow him to talk to Mueller MORE’s investigation. He later served in the second Bush administration as a lawyer and staff secretary. As a circuit judge, he developed a reputation as a brilliant, conservative jurist and a persuasive writer.

Perhaps more importantly for conservatives, Kavanaugh also has a legal record that can be scrutinized, whereas Souter did not. This is because as a member of the New Hampshire Supreme Court, Souter had little opportunity to dive into the most talked-about constitutional debates of the day. And he only served as a circuit judge for a few months before being nominated to the Supreme Court. When asked during his confirmation what he considered to be one of his most significant legal activities, he modestly cited his challenge to the federal government’s jurisdiction over New Hampshire’s Lake Winnipesaukee. 

Nevertheless, if Kavanaugh is confirmed to serve on the Supreme Court, there will inevitably be some surprises. After all, few expected Chief Justice John Roberts to write the opinion that upheld most provisions of the Affordable Care Act. Moreover, in the most recent term, many were surprised to see Justice Neil Gorsuch join the liberal justices in striking down a portion of the Immigration and Nationality Act. Not to mention that even when ideologically aligned justices disagree on a case’s result, they may do so for different reasons. In Carpenter v. United States, decided just last month, for example, each of the four dissenting conservative justices wrote separately to explain why they believed the case was wrongly decided.

There are also other things we won’t know about Kavanaugh until he is confirmed: His interest in building judicial coalitions, his habit of writing separately or his eagerness to change precedent that he was previously bound to follow as a circuit judge. Put simply, no amount of vetting can answer these questions. 

Like all people, judges are complex. They are individuals with opinions, perspectives and motives that are never fully understood. Conservatives are right to seek conservative judges; just as liberals are right to seek liberal judges. But politicians and activists are wise not to place all their hopes (or fears) on the newest justice. After all, they just might surprise you.

Anthony Marcum is a research associate for the nonprofit R Street Institute’s Governance Project.