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.
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