That’s not how Stuart Taylor titles his National Journal column on Justice Stevens, but it’s the question it addresses if you look at Stevens as a promising justice who proved an incredible disappointment. Taylor notes that Steven’s thought “evolved” in an ever leftward direction. Whereas at one time he wrote principled dissents disputing the legality of affirmative action, he became a solid vote for the regime of racial preferences in place today.
Why? Taylor offers a general theory of Republican duds:
One reason why so many Republican appointees have turned out to be more liberal than the presidents who picked them has been the difficulty of getting nominees with conservative paper trails through the Senate. Reagan chose Kennedy, whose record as an appellate judge was fairly centrist, only after the Senate had rejected the far more conservative Robert Bork by 58-42. The first President Bush chose Souter, a so-called stealth nominee, because his views were so unknown that there was little for Democrats to attack. He soon proved to be fairly liberal.
Blackmun and O’Connor as well as Stevens, on the other hand, clearly “evolved,” as liberal journalists and academics have said approvingly. Their ideological drift has to some extent mirrored the direction of general public opinion, such as diminishing bias against gay people. But the public has never moved sharply to the left — as has Stevens and as did O’Connor and Blackmun — on abortion rights, racial preferences or church-state issues such as school prayer.
While many liberals see this trend as a case of acquiring wisdom on the job, conservative critics including Justices Clarence Thomas and Antonin Scalia have claimed that their more liberal Republican-appointed colleagues have been moved neither by wisdom, nor by legal principle, nor by general public opinion, but by the leftward march of the intellectual elite, especially in the media and academia.
While I would not dismiss the liberal view, the conservative critique seems more plausible. Indeed, it would be only human, as I wrote in a 2003 column, for justices who arrive without settled ideological convictions to evolve in a liberal direction.
The justices’ reputations are determined in large part by mostly liberal news reporters, commentators and law professors and by liberal feminist, civil rights and professional interest groups such as the American Bar Association. Newly appointed justices who vote conservative are often portrayed as uncompassionate right-wing ideologues. Those who move leftward win praise for enlightenment. (“I ain’t evolving,” the aggressively conservative Thomas has reportedly told clerks.) And the bright young law clerks — the justices’ closest professional collaborators — tend to come from elite law schools where conservative professors are rare birds and general public opinion is widely seen as benighted.
Taylor’s review is limited to the modern era, but a general theory of Republican duds would also have to account for President Eisenhower’s appointments of Earl Warren and William Brennan to the Court. Even Eisenhower recognized that he made a monumental mistake with Warren, and Brennan must be one of the most willful justices who ever lived, though the competition is stiff on that point.
I had the great good fortune of working as a law clerk for Eighth Circuit Judge Richard Arnold, who himself had served as a law clerk for Brennan. (I wrote briefly about Judge Arnold here when he died in September 2004.) Judge Arnold was an utterly brilliant, principled liberal, yet he described his genuine horror over Justice Brennan’s privately announced desire to find a case that would allow him to rewrite habeas corpus law during the Term he worked for Brennan. In any event, duds appointed by Republicans to the Court are a problem that extends back deep into the Eisenhower era.
A general theory of Republican-appointed duds requires a special theory to account for Republican-appointed stars. In the modern era we have five: Chief Justices Rehnquist and Roberts and Justices Scalia, Thomas and Alito. John Hinderaker and I offered a theory accounting for them in the NR article “Introducing Sam Alito” (subscribers only), written when Justice Alito’s appointment to the Supreme Court was pending before the Senate. In Justice Alito’s case, we were predicting that he would be a star. We offered the deep secret of the conservative legal movement that is supplementary to Taylor’s hypothesis:
There is a good explanation for why, until now, Republican appointments have so often been disappointing to conservatives. The revolt against activist liberal judges was populist, and the legal profession was generally hostile to it. In the early years of the conservative revolt, the profession simply didn’t offer much in the way of a talent pool from which originalist jurists, primed to reject government by judiciary and reclaim the Constitution as the charter of limited government, could be drawn.
Thankfully, times have changed; and the Federalist Society deserves a great deal of the credit. Founded in 1982, the Federalist Society has been a forceful advocate for the proposition that it is “the province and duty of the judiciary to say what the law is, not what it should be.” The Society has provided a forum for lawyers from all walks of the profession and of all persuasions to debate issues of law and public policy. Among the federal appellate judges who have participated in Federalist Society forums are D.C. Circuit judges A. Raymond Randolph and David Sentelle, Fourth Circuit judge J. Harvie Wilkinson III, Fifth Circuit judge Edith Jones, Seventh Circuit judge Frank Easterbrook, Eighth Circuit judge Pasco Bowman, Ninth Circuit judges Alex Kozinski and Diarmuid O’Scannlain, and, yes, Third Circuit judge Sam Alito.
Over the past 20 years, Republican presidents have populated the lower federal courts with these and many other highly credentialed conservative lawyers. How much they could accomplish in those positions has been limited, however, by the fact that District Court and Court of Appeals judges are bound to follow the precedents laid down by the Supreme Court….
A circuit-court judge, like a district-court judge, takes Supreme Court jurisprudence as he finds it. His opinion as to whether Supreme Court rulings are right or wrong is entirely immaterial. His duty is to apply the relevant Supreme Court decisions to the case before him, as best he can. This changes once a judge is appointed to the Supreme Court. As a Supreme Court justice, he is entitled to follow his own views on the proper interpretation of the Constitution and of federal statutes. He is not bound to follow the Court’s past rulings as an appeals-court judge is; instead, he is constrained only by the looser concept of stare decisis, the doctrine that an issue, once decided, should ordinarily not be revisited. Stare decisis is a doctrine that, in principle, is approved of by both liberals and conservatives (historically, more so by conservatives).
But everyone agrees there are occasions when the Court should deviate from the usual rule of fidelity to its past decisions. The Court does, and should, overrule itself when it becomes convinced that an important issue has been wrongly decided. Where liberals and conservatives disagree is not on this principle, but on its application; they have different lists of “wrongly decided” cases. During Judge Alito’s confirmation hearing, Democratic senators will ask for his views on stare decisis and try to lead him to pledge fealty to bulwarks of liberal jurisprudence like Roe v. Wade. But the liberals’ enthusiasm for stare decisis is selective. In 2003, the Supreme Court held in Lawrence v. Texas that there is a constitutional right to commit acts of homosexual sodomy. In so ruling, the Court overturned Bowers v. Hardwick, which had held the opposite. And Bowers was not ancient history; it was decided in 1986. If any liberal objected to Lawrence on the ground of stare decisis, we missed it.
The Alito nomination, together with John Roberts’s accession to the post of chief justice, marks a generational changing of the guard. The talented, principled conservatives who began their legal careers in the aftermath of the Warren Court have served their apprenticeships in the executive branch, in private practice, and on the lower federal courts. In those positions, their influence has been real but limited. But now, the moment that rank-and-file conservatives have awaited since the Nixon administration is at hand: A Republican president has a deep roster of talented and highly qualified conservatives on which he can draw in making Supreme Court nominations.
There is every reason to believe that Samuel Alito will prove the kind of Supreme Court justice that Republican presidents have promised, but rarely delivered, since 1969, and that the Court will shift in a more conservative direction as a result.
I wish we would have used the term “constitutional” instead of “conservative,” but that is certainly what we meant. In any event, our prediction is certainly proving true in the case of Justice Alito.
Justice Stevens’s retirement offers a good occasion to look back and address the important question of “evolution” that Taylor addresses. Taylor’s hypothesis explains much. It also documents what a disappointment Stevens has been.
Taylor’s general theory of Republican duds requires a special theory of Republican stars. Unfortunately, it’s a problem we won’t have the occasion to worry over for a while, but I think the special theory John and I offered in the case of then-Judge Alito isn’t bad.