Batting .500 isn’t good enough

Not when it comes to Supreme Court appointments, as we are reminded every year at this time. Unfortunately, .500 is just about what the Republicans have batted since Nixon was elected (I don’t even want to think about Eisenhower’s selection of Warren and Brennan). For every Burger there’s been a Blackmun; for every Rehnquist, a Stevens; for every Scalia, an O’Connor; for every Thomas, a Souter, and so on. Thus, only four of seven Republican nominees were willing to hold that racial discrimination by state colleges and universities is unconstitutional.
Liberal commentators like to cite this phenomenon as proof that presidents never know what they’re going to get from their Supreme Court appointments. They also love to talk about Justices “growing in office.” But Democratic nominees never seem to grow. Democratic presidents get just what they bargained for, although mercifully the modern sample is small.
Why do Republican presidents have so much trouble in this area? The main reason probably is that they aren’t single-minded. They are not simply trying to fill vacancies on the high court with conservatives, let alone strong conservatives. They are also trying to score points with minority voters, females, swing voters, and possibly even the press. This is understandable. One would expect presidents, especially non-lawyer presidents, to be more concerned with bolstering their popularity than with making outstanding judicial appointments. (Even in the case of the best recent appointee, Clarence Thomas, it is not clear that the first President Bush was trying to pick a great conservative jurist, although that’s how it’s turning out). And one of the reasons why the Republican party seems to be overtaking the Democrats is that its leaders are less slavish in adhering to the wishes of the party’s base. But recent developments confirm that, when Supreme Court slots are available, the stakes are too high to make affirmative action selections or to reach out to swing voters.
Finally, a few thoughts about court of appeals nominations. Conservative presidents gain nothing by selecting moderate judges at this level. And the acclaim Reagan got for appointing a female or that the current Bush thinks he might get if he appoints a Hispanic is not available when it comes to appointments below the Supreme Court level. Thus, it strikes me as inexcusable that Bush is nominating as many non-conservatives for these slots as he seems to be. For example, the Fourth Circuit Court of Appeals (which encompasses Maryland, Virginia, West Virginia, and the Carolinas) is the most conservative appeals court in the land, and features outstanding conservative jurists, several of whom are mentioned as possible Supreme Court nominees. However, Bush appointed a liberal African-American whom Clinton, in defiance of Senate Republicans, had placed on the court as a recess (temporary) appointment. After then appointing one conservative, Bush sent up a slate of two more African-American appointees. One is conservative but the other, Allyson Duncan, is not known to be. Moreover, reports about the demeanor of Duncan’s home state Senator John Edwards during her confirmation hearing suggest that Duncan may be very quick to “grow in office.” Thus, the Republicans don’t seem to be batting more than .500 in the lower courts, either.