During the Republican presidential debates in 2015-16, Donald Trump attacked Ted Cruz for strongly backing the nomination of John Roberts to the Supreme Court. Cruz responded that Roberts was not his preferred nominee — Michael Luttig was — but that he did support the nomination once President Bush tapped Roberts.
Given Trump’s attack on Cruz, and on George W. Bush, it’s fair to ask how Trump’s two nominees — Justices Gorsuch and Kavanaugh — stack up. Did Trump do better than Bush in nominating conservatives or did he choke (to his one of his favorite words) in at least one case?
We only have one Supreme Court term to go on, but I think that’s enough for a preliminary evaluation.
A model by two University of Michigan professors — Andrew Martin and Kevin Quinn — ranks the nine Justices across an ideological spectrum. Here is how they rank, from most liberal to most conservative:
Thus, according to this model, President Bush was slightly more successful than President Trump in nominating conservative Supreme Court Justices.
Is the Martin-Quinn model credible? I think so.
If you exclude Gorsuch and Kavanaugh, who are just starting out, and focus only on the Justices with long records, most observers of the Court would agree with the exact order produced by the model. Thus, the model seems to know what it’s doing, so to speak.
Moreover, as Jason Richwine observes:
Kavanaugh voted with the majority 89 percent of the time, which was the highest rate of any justice, surpassing even the 85 percent achieved by Chief Justice John Roberts. Kavanaugh and Roberts formed the second-most-agreeable pair of justices (after Sotomayor and Ginsburg), voting together 92 percent of the time.
Furthermore, Kavanaugh was just as likely to vote with liberals Elena Kagan and Stephen Breyer as he was with fellow Trump nominee Neil Gorsuch.
Thus, the Martin-Quinn model appears to be correct in placing Kavanaugh in the middle of its spectrum, and to the liberal side of Chief Justice Roberts, whose selection by George Bush so offended Trump.
It’s also worth noting that Trump’s reason for bashing Roberts was his ruling in the 2012 Obamacare case. Yet, Trump nominated Kavanaugh even though he, like Roberts, had found Obamacare’s individual mandate to be constitutional.
I’ve heard that Kavanaugh has been telling people he wanted to “lay low” during his first term on the Court, given all of the controversy surrounding his nomination. That he would think this way, if he did, is disturbing. Clarence Thomas certainly didn’t adopt a “lay low” approach. However, it’s possible that, with the first term now over, Kavanaugh will move to the right.
If he does, though, it will be a first in my time following the Court. The pattern is for Justices nominated by Republican presidents to become less conservative as time goes on, or to stay where they are. I can’t think of any modern Justice nominated by a Republican who became more conservative with age.
In this regard, it’s worth noting that John Roberts was a pretty reliable conservative during his early years on the Court. Even after the 2012 Obamacare decision, Roberts was a reasonably consistent conservative vote.
This seems to have changed in the last year or two. It’s particularly distressing that Kavanaugh appears to be to the left of the current, more moderate incarnation of John Roberts.
The historical average for Republican presidents when it comes to nominating reliably conservative Justices is 50 percent. If President Trump is to beat that average, he may need more nominees to do it.