Do Democrats vet Supreme Court appointees better (ideologically) than Republicans?

By “vet” I don’t mean personal character, although I don’t recall any recent Democratic SCOTUS nominee encountering the trouble in confirmation that Thomas or Kavanaugh did. Rather, it looks that Democrats are much better at selecting and vetting their nominees ideologically.

Democrats have made fewer nominees than Republicans in the last few decades, but every single one was a home run. Ginsburg, Breyer, Kagan and Sotomayor are/were all reliably liberal justices. Clinton and Obama really smashed it out of the ballpark with each one, 1.000 batter rate.

By contrast, Bush Sr. selected Souter, who turned out to be surprisingly liberal. Roberts has been known to vote liberal from time to time to preserve the court’s appearance. John Paul Stevens was appointed by Ford, and known to be quite liberal. Even Gorsuch and Kavanaugh occasionally crossed the aisle.

If so, why is this? And given that Republicans have the Federalist Society and Democrats don’t, why do the Democrats have such a highly successful batting rate?

Because there is no such thing as “originalism” or “strict Constitutionalism” - it’s still all interpretation and rationalization. It’s whoever can make the best argument or justification, because everything involves one’s own interpretation, no matter what they say.

The supposed “liberal” judges don’t pretend to buy into that bullshit. The other guys do. It’s a lot easier to be consistent when you’re not constantly having to twist words around to try and fit into an impossible judicial philosophy.

My take, anyway. IANAL.

I think you’re drawing too much of a distinction between “reliably liberal” justices and conservatives who “cross the aisle.” All of the liberal justices you list have sided with conservatives at times in split decisions. Stevens was from a different era when the conservative/liberal split was not as much of an issue. And Souter did genuinely turn out to be more liberal than Republicans had hoped – and is the major reason why every Republican Supreme Court justice since has been vetted within an inch of his or her life by the Federalist Society.

So no, I don’t agree with the proposition. Particularly at this point in time, Republicans have established an extremely effective machine for identifying, encouraging and promoting solidly conservative judges up through the ranks of the judiciary.

It’s not that Democrats are better at making sure that their justices conform to their ideology. It’s that Republican ideology in recent decades has been shifting away from rational jurisprudence at near-relativistic speeds.

Even strongly conservative justices are somewhat more averse to openly defending completely irrational jackass positions than, say, strongly conservative legislators are. The legislators have to pander to voters, and are not too concerned about future generations poring over their immortalized opinions to mock their incoherent dumbassery. The justices, on the other hand, don’t and are.

In fact, Republican ideology—such as it can be said to still exist—can be primarily characterized as “Win at all costs”, and the primary means of doing so is by swaying public opinion via the manipulation of language. They’ve learned to redefine things like “values” and “freedom” in very specific, asemantic ways that even shock Eric Blair, and it has been extraordinarily effective in the political arena. This is not to say that other people across the spectrum don’t try to manipulate the language to their own ends—Bill Clinton famously tried to bullshit his way out of impeachment by trying to redefine what “sexual relations” meant—but for Republicans it has been a concerted effort to redefine the words they use to exclude the possibility of opposition in thought or deed.

Unfortunately, this doesn’t work so well in the legal context, because the practice of the law has its own vocabulary with very specific interpretations that cannot be readily manipulated to suit whatever conclusions one may presume, and it is very difficult for a judge—even one with very conservative, “originalist” views—to put into record a decision which is contrary to the previously established interpretation of the Constitution. (Not that Clarence Thomas hasn’t tried a few times but he generally ends up all on his own when he does.) Of course, that also ties the hands of ‘liberal’ justices when it comes to a cause they may believe in but for which a legal interpretation does not support a particular challenge, and even the most liberal Supreme Court justice is loathe to directly contradict a prior decision unless there is a clear consensus that the prior decision was flawed or influenced.

As for “originalist” versus “activist”, although the Constitution is often celebrated as being some kind of perfect document, it was written over two hundred and thirty years ago by a bunch of rich white men, many of whom had the temerity to “establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity” while owning and trading human beings as chattel, and they could not envision either the technological or social innovations that the then fledgling upstart colony would experience, nor the changes in views of national sovereignty and relations that the world would not experience for another sixty years. Very little of what the United States is today would be readily comprehensible to the “Founding Fathers” in either manner or extent, and we can scarcely rely on the Constitution has some kind of doctrinal text with hidden revelations to cover every development. It should be viewed, rather, as a set of guiding principles that made sense to the people trying to develop the first modern democracy largely based upon the principles outlined John Locke, but without any notion of how language and society would evolve.

To that end, Supreme Court justices should be evaluated and selected on the basis of both their legal scholarship as well as a solid understanding of the social, economic, and ethical impact that laws, good and bad, may have, and the sensibility to make decisions not based on whether it matches the political winds of the time but how well it enhances the fundamental principles espoused (if often irregularly followed) but the Founders as well as a general tendency toward greater freedom and fewer restrictions. On that basis, I would argue that the premise of the o.p.—that Democrats have been better than Republicans at selecting ideologically-compatible justices—is wrong. Modern (post-Dixiecrat) Democrats have tended to select justices that were good legal scholars with a solid sense of ethics, and modern Republicans have pushed for candidates which they believed to be more ideal logically aligned only to discover that many of their preferred candidates were legal scholars first and Republicans second.


Thomas and Kavanaugh were accused of far more serious crimes than any recent Democratic SCOTUS nominee. And yet both were confirmed. Abe Fortas and Merrick Garland were nominated and not confirmed.

And it’s quite possible that a lot of their appointees have adopted this philosophy for their own careers. If you were looking to bullshit your way onto the Supreme Court, it would be far easier to bullshit the Republicans, because they’ve shown time and time again they don’t actually give a shit about the quality of their appointees, so long as the appointees quote the proper type of bullshit when asked.

Democrats actually care about the substance of their appointees positions, and so don’t just accept their bullshit at face value.

Another issue is that conservatives seem to have adopted a strategy of telling potential justices to avoid building up a paper trail. The idea is they don’t give any information that the Democrats can find and bring up at a confirmation hearing; fly under the radar and avoid answering any questions about your judicial views.

This works in the sense that these stealth backgrounds don’t let the Democrats have anything they can use. But the Republicans have found out that this lack of information means that they also don’t know for sure what the justice they’re promoting is really like. They’ve found that a few of the judges they thought were hiding their arch-conservative beliefs were actually hiding their relatively moderate beliefs.

Assuming Republicans vote as a united bloc in the Senate, the logical thing for the GOP would be to find arch-conservative judges with a long paper trail of right-wing judgments (but no skeletons in the closet) and ram them through in the Senate on a party-line basis. Since Democrats would be bound to cry foul over the long paper trail and vote against the nominee anyway. This would work any time the Republicans any time they had, say, a majority in the Senate of 52 or more.