The Past and Future of Stealth SCOTUS Nominees

by Michael Dorf

Near the end of the seemingly interminable Republican Presidential Debate on Wednesday night, former Florida Governor Jeb Bush indicated that if he were president, he would nominate conservatives with an established track record to the Supreme Court. There ensued sniping between Bush and Senator Ted Cruz over whether the latter had supported John Roberts for Chief Justice, punctuated by former Arkansas Governor Mike Huckabee's vow to apply a litmus test (that was the phrasing of the question and he embraced it) on abortion for his nominees. Rather than evaluate who "won" that particular round of the debate, I want to examine the premises behind Bush's initial statement.

Bush made his comment in response to a question from one of the moderators, Dana Bash, who noted that Cruz had criticized President George W. Bush for appointing John Roberts as Chief Justice, in light of the latter's votes to uphold the Affordable Care Act and to construe it as permitting subsidies on federally operated exchanges. (Bash actually said that Chief Justice Roberts "voted to uphold Obamacare twice," even though the second time, in King v. Burwell, the issue was not whether to strike it down, but her meaning was plain enough.) Here is what Bush said, taken from the WaPo transcript and cleaned up a bit by me (as indicated by brackets and ellipses) to smooth over the inevitable problem of transcribing anyone's spoken words as compounded by the Bush family's notorious difficulty stringing together a linear sentence:
We need to make sure that we have justices . . . with a proven experienced record of respect for upholding the constitution. That is what we need. [T]he history in [the] recent past is [for presidents to] appoint people that have no experience so that you can't get attacked. And, that makes it harder for people to have confidence that [the appointees] won't veer off [in a liberal direction.] John Roberts has made some really good decisions . . . but he did not have a proven, extensive record that would have made [it clear that he would be a reliable conservative] and [such] clarity [is] the important thing, and [so] what we need to do [is nominate proven conservatives]. And, I'm willing to fight for those nominees to make sure that they get passed. You can't do it the politically expedient way anymore. This is the culture in Washington. You have to fight hard for these appointments. This is perhaps the most important thing that the next president will do.
In at least a tacit criticism of his father (for nominating Justice Souter) and his brother (for nominating Chief Justice Roberts), Jeb Bush appeared to be making the following claims:

1) In the past, Republican presidents have nominated people without an extensive public record of conservative rulings as lower court judges or conservative positions taken in other fora. [This is what Jeb Bush apparently meant by "no experience", which is a fairly uncharitable way to describe the pre-SCOTUS career of either Souter or Roberts.]

2) This practice was "politically expedient" because the absence of an extensive conservative public record defanged potential liberal opposition, thus ensuring Senate confirmation.

3) However, a stealth nominee is a double-edged sword, because he or she could end up voting in a less conservative way than a known conservative would.

4) Therefore, a president determined to move the SCOTUS in a conservative direction should nominate well-known high-profile conservatives and spend the political capital to get them confirmed.

5) I, Jeb Bush, am determined to act in this way, and so that's what I'll do if elected president.

The controversial parts are items 1 and 4. I agree with the conventional wisdom that Justice Souter was a stealth candidate in the sense that he did not have an extensive paper trail AND that President George H.W. Bush's administration did not have inside information that ensured insiders of Souter's committed conservatism. As is well-known, Souter was close with New Hampshire Sen. Warren Rudman and so Bush I Chief of Staff John H. Sununu, a former New Hampshire governor, assumed that Souter was reliably conservative, but Sununu lacked an adequate basis for this assumption--especially given that Rudman himself was a moderate (at least on social issues).

John Roberts, however, was different and, in many ways, the ideal candidate in an era of a closely divided Senate because, although he lacked an extensive paper trail (other than briefs filed on behalf of clients, including the government), his long service in the executive branch during Republican administrations made him a known entity to conservatives. And sure enough, Roberts has been a quite conservative justice. On the issues of fundamental importance to the members of the Republican base who care about judicial appointments--guns, affirmative action, gay rights, voting rights, religion in public life, and more--Roberts has been quite conservative. I sincerely wish that the fact that he didn't vote against the Obama administration in the two ACA cases were a portent of a turn to the center, but there's no real evidence of anything like that.

Accordingly, if I were an advisor to the next Republican administration, I would suggest continuing with the policy of one-way stealth candidates--distinguished charismatic lawyers with light paper trails who are nonetheless known to administration insiders to be deeply conservative. Likewise, it should be possible for a Democratic administration to find liberal one-way stealth nominees, and arguably Justice Kagan is an example. Her academic writing did not touch on very many hot-button topics but her stints in government during Democratic administrations gave the party inside information.

Thus, it strikes me that former Governor Bush is wrong to think that a president bent on making ideological appointments to the SCOTUS needs to abandon the one-way stealth candidate strategy. Moreover, the strategy with which he plans to replace it is likely to fail except when the president's party has 60 votes in the Senate.

Suppose that the president's party has a majority but not a filibuster-proof majority in the Senate. Nominating a one-way stealth candidate is a good strategy because, absent a public record of strong ideological commitment, at least a few moderate Senators of the other party will conclude that the nominee is not so extreme as to warrant a filibuster. By contrast, if the president nominates a well-known reliable ideologue of his own party, the nominee will get less support from the other party.

Presumably this is why former Governor Bush said that he would be willing to "fight hard" for his clearly conservative nominees, but it's not at all obvious how he could do that. The clearer it is that his nominee is a committed conservative, the more pressure there will be on Democratic Senators from their base to oppose the nominee. Perhaps it would be possible to win over a handful of Senators from the opposite party in swing states with a media blitz, but all of this is much more difficult with a nominee with clear ideological leanings than with a nominee who can be presented to the public as a cypher even as he or she is known to administration insiders.

Thus, the Bush/Cruz strategy (for they agreed upon it ultimately) of nominating proven conservatives should be unappealing even to conservatives--unless, like Senator Cruz in general, they are more concerned about taking a stand for its own sake than about moving the dial closer to their preferred outcome.