Why so much trouble nominating reliably conservative Justices? Part Two

In this post from last month, I tried to explain why Republican presidents have far less success nominating reliably conservative Supreme Court Justices than their Democratic counterparts have in nominating liberal ones. The main reason, I said, is that the conservative legal movement in America has multiple strands, not all of which point adherents to a result that can be called, or agreed upon as, conservative.

For example, if one compares Chief Justice Roberts’ “judicial modesty” with Justice Gorsuch’s immodest rendition of textualism, it’s easy to see why they reached different results in the “Indian lands” case. It’s also easy to see why both of them disagreed with Justice Alito, a less quirky conservative, as to whether Title VII protects gay, lesbian, and transgender individuals from employment discrimination.

There may be different strands of left-liberal jurisprudence, too. I assume there are. However, they are not readily evident in the writings of the four left-liberal Justices. In crunch time, they tend to march in lock step. Maybe none of the strands ever yields a result that four conservative Justices could reach.

In today’s Washington Post, a Harvard law professor, Adrian Vermeule, takes his shot at explaining the indisputable fact that “conservative justices often break ranks to give liberals a 5-to-4 majority, [but] liberal justices rarely do the same in reverse.” He dismisses two possible explanations, before embracing a third.

The first is that “liberal justices are, despite their protestations, systematically less principled” than conservative ones. Vermeule brushes this explanation off in a single clause as “a suspiciously partisan view that credits the reported experience of only some justices and discounts that of others.” Whose experiences are “discounted”? Vermuele doesn’t say.

He also dismisses a second explanation — that “conservative swing justices depart from their best judgment about what the Constitution requires in controversial cases because they are overwhelmed by the political, social and cultural pressures of the left-elite milieu, especially the praise or censure of the mainstream media.” According to Vermuele, “this account fails to explain why defections have persisted or even increased as the influence of the mainstream media has declined” and “also posits either conscious infidelity to law or an implausible lack of self-awareness.”

It may be true that the influence of the mainstream media has declined, even for people in the Justices age cohort. However, political, social and cultural pressures have not.

Vermuele’s explanation for conservative defections is that conservative defectors are faithfully following the law, but not the written Constitution. Rather, they are “enforc[ing] our real, unwritten constitution, a set of understandings that underlies and shapes our interpretation of the law.” Hardcore conservatives — Justices Thomas and Alito — don’t do this, but the “gravitational force” of our alleged unwritten constitution pulls in the others from time to time.

As Ed Whelan points out, this is just a fancy, righteous-sounding way of saying that defecting conservatives are following political, social, and cultural pressures of the left-elite milieu — the explanation Vermuele dismissed a paragraph earlier. Ed puts it this way:

I see little or no meaningful difference between whether a conservative justice defects because he unconsciously surrenders to the “political, social and cultural pressures of the left-elite milieu” or because he allows the “gravitational force” of the “liberal order” to “skew” his decisions.

Ed presents a different explanation for why conservative Justices defect far more often than liberals ones (who almost never do):

A justice who likes to be liked, or who desires to be admired, or who is eager to go along to get along (what I’ll call Type 1) is far more susceptible to stray than a justice who is inner-directed and anchored, who doesn’t care about being popular or who is even contrary or cantankerous (Type 2). Antonin Scalia, Clarence Thomas, and Samuel Alito are all Type 2.

One unfortunate reality is that the process of selecting and confirming Supreme Court justices strongly favors Type 1 conservatives. The nomination and confirmation processes are intensely political, and the qualities of Type 1 conservatives correlate strongly with qualities that are politically appealing and salient. Advisers to the president want a Supreme Court nomination to be a short-term political victory, and same-party senators strongly prefer a light lift. A Type 1 conservative is going to be much more adept than a Type 2 conservative at charming senators, trotting out a list of liberal friends and admirers, and neutralizing a leftist media—and thus at winning the support of the president and his advisers for the nomination in the first place.

This is somewhat similar to an explanation I offered in my first post on the subject — one that focused on the president, rather than his advisers and members of the Senate. Recent Republicans presidents, I argued, have been swayed by the personalities of the potential nominees presented for their consideration.

George W. Bush probably preferred John Roberts’ persona — young, vigorous, and charming — to those of Michael Luttig and J. Harve Wilkinson. Donald Trump may have been more drawn to Neil Gorsuch on a personal level than to, say, Ray Kethledge.

To the extent that charm correlates with some degree of malleability, its role in the selection process yields less reliably conservative nominees. In any case, charm at best is an extraneous consideration if the object is to select Justices who won’t join the liberal bloc in big cases.

Do Democratic presidents care as much about personal charm, etc? Perhaps not. President Obama went about selecting nominees pragmatically, selecting a ( “wise”) Latina when the situation called for it and a more tame-looking liberal (Merrick Garland) when extraordinary circumstances made that seem like the smart move.

In any event, anyone presented to the president for consideration as a Supreme Court nominee — Judge Garland included — can be counted on to toe the left-liberal line once confirmed. The process by which Democratic presidents select reliable left-liberals for the Supreme Court is fool proof, and has been for many decades.

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