Soon Washington will be gripped by the confirmation hearings of
Barack Obama’s second nominee to the Supreme Court. Some Senate
Republicans are saying they will take it to the mattresses if the
president nominates a hard-bitten liberal activist. But let us
first take a look at the liberal activist now leaving the Court.
John Paul Stevens was nominated by a Republican president, Gerald
Ford. He was confirmed with strong Republican support. In the
beginning of his tenure, his rulings on divisive constitutional
issues could be described as mildly right-of-center. Stevens
retires the most liberal justice on the Supreme Court, leading a
bloc otherwise composed of Democratic nominees.
Stevens follows in the footsteps of Earl Warren, William Brennan,
and Harry Blackmun before him. David Souter came afterward. There
but for the grace of Antonin Scalia went Sandra Day O’Connor and
Anthony Kennedy. Some of our most liberal justices were given
their seats by Republican presidents, some of whom explicitly
campaigned against liberal judicial activism.
Richard Nixon ran against the liberal excesses of the Warren
Court. Yet it was the man Nixon served as vice president, Dwight
Eisenhower, who made the appointments that created the Warren
Court in the first place. With the exception of William
Rehnquist, Nixon’s nominees — even the conservative-leaning ones
— largely consolidated Warren’s handiwork.
After nearly 12 years of uninterrupted Republican control of the
White House and no Democratic-appointed Supreme Court justice
since Lyndon Johnson was president, what did the highest court in
the land do? Uphold the core holding of Roe v. Wade;
reaffirm precedents kicking prayer and the Bible out of public
schools; and extend those precedents to side with parents who
wanted to bar a rabbi from giving the invocation at a Providence
middle school.
The above decisions were closely fought 5-4 affairs, for Ronald
Reagan and George H.W. Bush nominated conservative Supreme Court
justices — and they also picked justices who sided with the
liberal bloc on the very questions that most aroused the
conservative movement. Bush’s Souter joined Stevens as a regular
member in good standing of that liberal bloc. To find a
Democratic justice who unexpectedly became a conservative, one
must go all the way back to Byron “Whizzer” White under John F.
Kennedy.
Even after Senate Democrats savaged Robert Bork and nearly did
the same to Clarence Thomas, GOP senators continued to consult
their Emily Post etiquette guides when Democratic presidents
nominated liberal jurists. Only nine voted against Stephen Breyer
and just three dared oppose Ruth Bader Ginsburg, the former chief
litigator of the ACLU’s feminist legal project. It was no
surprise when they delivered rulings favorable to affirmative
action and partial-birth abortion.
It wasn’t until George W. Bush became president that
conservatives got serious. When he initially picked Harriet Miers
to fill a Supreme Court vacancy — and was thought to be
considering Alberto Gonzales for another — conservatives cried,
“No more Souters!” There was a well developed legal network of
eminently qualified, identifiable judicial conservatives. Why did
we need to take the risk? Bush relented, nominating proven
conservatives John Roberts and Sam Alito.
Half the Democrats in the Senate voted against Roberts. Only four
voted to confirm Alito. Neither man’s qualifications or character
were in doubt. So when Obama became president, Republicans
finally stopped practicing unilateral disarmament on Supreme
Court justices. Only nine voted for Sonia Sotomayor (we’ll see if
that trend holds).
The calculus here is simple: If liberals will not support
qualified conservative nominees when Republicans hold the White
House, conservatives should not support liberals when Democrats
retake the presidency. And when the president is a Republican,
conservatives should support only proven conservatives, not
Souters and Stevenses. It is time to take the Court as seriously
as liberals do.
But what about the presidents who nominate these justices?
Should not the right want them to be proven conservatives
too? Despite the conservative ascendancy within the GOP, exactly
two movement conservatives have gone on to be the Republican
presidential nominee: Barry Goldwater and Ronald Reagan. Since
Reagan, movement conservatives have often been complicit in their
own marginalization, supporting establishment frontrunners over
right-wing insurgents.
This is how the Republican Party ends up with frontrunners who
dismiss the Reagan growth agenda as “voodoo economics,” who raise
taxes upon taking office, who cut more deals than spending
programs, who support amnesty, cap and trade, and restrictions on
political speech more than they do tax cuts. This is why when it
comes time to find a presidential candidate, conservatives must
choose between backbenchers and architects of Obamacare Lite.
The realization that conservatives must look within their own
movement for dependable Supreme Court justices ought to apply to
the elected branches of government as well. No more David
Souters. And no more John Paul Stevens Republicans.
