By Mike Dorf
In my next FindLaw column (available later this week) I'll discuss the evolution of Justice Stevens's views and offer some general thoughts on what leads moderates to become more liberal over time. Here I want to offer a comment on a front-page story by Adam Liptak in yesterday's NY Times. Liptak quotes a number of studies and sources in support of the general proposition that in recent years, Presidents (especially Republican Presidents) have gotten better at screening out Justices susceptible to ideological drift. That's broadly consistent with a 2007 article of mine (not cited in the Times story, ahem!), in the Harvard Law & Policy Review.
My thesis was that a single factor--substantial service in the executive branch of the federal government--explained why Republican nominees either proved to be generally reliable conservatives (if they had such experience) or ended up as moderates or liberals (if they lacked such experience). I also hypothesized a causal mechanism: The ideological views of lawyers who worked in prior Republican administrations would be known to the people doing the selection of judicial nominees. Now let's see how that interacts with the other major factor in recent appointments: judicial experience.
Many people have noted how every Justice currently on the Court (including Justice Stevens) was previously a federal appeals court judge. That seems odd because it is commonly thought that picking a nominee with a minimal paper trail is a way to rob political adversaries of material with which to attack the nominee; yet federal appeals court judges decide thousands of cases, giving them a very substantial paper trail. What gives?
The most likely answer is that the disadvantage of a federal appeals court judge's paper trail is less of a worry than the disadvantage of a possibly unknown entity. The absence of a paper trail could mean that a nominee is not reliable. Liptak opens his article by pointing out how the Republicans were misled by Justice Souter's relatively conservative record as a New Hampshire Supreme Court Justice. Souter had been on the First Circuit for only a very short time when he was nominated to the Supreme Court, and so he lacked a substantial paper trail on relevant case law.
But there is a way for a determined President to game things. Combining both sets of insights, the ideal nominee would be someone who 1) has the qualifications advantage of being a federal appeals court judge (or equivalent); 2) has been a federal appeals court judge (or equivalent) for a short period and so lacks a paper trail; but 3) worked in the federal executive under a previous administration of the current President's party and so is known to be reliable.
Who met all 3 of the above criteria? CJ Roberts and Justice Thomas. Interestingly, of the 3 leading candidates apparently now under consideration by Pres. Obama, only SG Kagan gets the hat trick. Both Judges Wood and Garland have been on the bench long enough to have substantial paper trails. Kagan has never been a judge, so it might be thought that she doesn't get the benefit of 1). But she clearly doesn't need it. The SG is often described as a "10th Justice," giving her what I'm calling the "equivalent" of judicial experience. And anyway, Republican opponents cannot credibly contend that the former dean of Harvard Law School lacks the requisite professional qualifications to serve on the Court.
Does this mean that Pres. Obama will/should pick Kagan over Wood and Garland (and everyone else)? Not necessarily. Although my analysis says that hitting all 3 factors makes a candidate ideal, the two other reliably conservative members of the current Court--Justices Scalia and Alito--failed criterion 2) in that they served "too long" on the federal appellate bench. But they got confirmed anyway.
Still, these matters have become substantially more partisan even since Justice Alito's confirmation hearings less than 5 years ago. Justice Scalia's unanimous confirmation in 1986 feels like it took place in a whole different era. If the new era requires perfect nominees, then look for someone who hits all 3 of the criteria.