Two questions really, but I think they’re interrelated.
Do Supreme Court justices tend to creep toward the left the longer they are on the high court? I don’t have a cite for this, though I have seen it a few times in editorials and blogs during this nomination season, especially about how O’Connor was seen as being “reliably conservative” until she was actually on the court. I don’t mean to question if there has ever been someone consistently conservative, but whether the court itself seems to have a liberalizing effect on some or many justices.
Why does it seem the perception that “stealth candidates” skew leftward? I have seen many comments like this about how:
Granted that Coulter is an idiot, but I have seen non-idiots espouse this same view. Is this just a factor of the most recent stealth candidate being David Souter? Or is there something else at work?
Gotta admit. If he could have played a decent 3B for the Cubs he would have been perfect.
NPR ran a piece on the OP a week or two ago. By their definition conservative judges who had arrived at their positions through life experience and such tended to go left the longer they sat on the bench. But justices who arrived at their conservative POV through deliberation and through a philosophy of law and government tended to stay where they were.
Some people adjust more readily to progress and change than do others. This has more to do with character and temperment than legal philosophy. The radical leads, the liberal follows enthusiasticly, the moderate with ambivalence, the conservative reluctanty, and the reactionary is dragged kicking and screaming, clawing to return to a Golden Age that never existed, and wouldn’t have been worth preserving if it had.
Ah, here we go, from September 2000. I’ve removed the comments that pertained directly to that OP:
Let’s use Roosevelt’s appointees as a whole as the beginning of the modern Supreme Court era, and let’s see what we’ve got vis a vis individual ideologies and the expectations thereof. (The starting point is largely arbitrary; if anyone wants, I’ll take it back to Holmes, the first appointee of the twentieth century.)
There have been thirty-five justices appointed since Franklin Roosevelt took office (this counts Rehnquist twice, once as associate justice, in 1971, and then in 1986 as chief justice). Nineteen of them have been appointed by Democrats (with thirteen of the nineteen coming from FDR and Truman, and nine from FDR alone), and sixteen by Republicans (including eleven straight before Clinton took office).
Right there you can see a pattern: until Clinton, all recent justices–Burger, Blackmun, Powell, Rehnquist, Stevens, O’Connor, Scalia, Kennedy, Souter, Thomas–had been Republican appointees…no wonder there’s a perception that only Republican justices switch ideologies, considering the human tendency to focus on recent history!
I’ll examine each of the thirty-five, but first I’ve got some really good data about the twenty-four nominations from Earl Warren (1953) through Clarence Thomas (1991), including the failed bids of two Nixon appointees (Haynsworth and Carswell), Abe Fortas’ unsuccessful nomination for Chief Justice, and the Bork nomination:
The Supreme Court Compendium (1994), a statistical resource compiled by Congressional Quarterly Press, lists the perceived ideology of each of these nominees at the time of their nomination (derived, they say, “from a content analysis of editorial judgments in the New York Times, Washington Post, Chicago Tribune, and Los Angeles Times.”) Each justice is rated from 0 to 1, with 0 being the most conservative and 1 the most liberal. Keep in mind that we’re dealing in this period with nineteen Republican appointees (including Haynsworth, Carswell, and Bork), and only five Democratic appointees (including Fortas twice). Here are the findings, with the nominee’s name, the year they were nominated, the president who nominated them, and their indice of perceived ideology. Remember, the closer the indice is to 1, the more liberal they were perceived to be at the time of their nomination.
Earl Warren, 1953 (Eisenhower) .75
John Harlan, 1955 (Eisenhower) .88
William Brennan, 1956 (") 1.00
Charles Whittaker, 1957 (") .50
Potter Stewart, 1958 (") .75
Byron White, 1962 (Kennedy) .50
Arthur Goldberg, 1962 (") .75
Abe Fortas, 1965 (Johnson) 1.00
Thurgood Marshall, 1967 (") 1.00
Abe Fortas, 1968 (") .85
Warren Burger, 1969 (Nixon) .12
Clement Haynsworth, 1969 (") .16
G. Harrold Carswell, 1970 (") .04
Harry Blackmun, 1970 (") .12
Lewis Powell, 1971 (") .17
William Rehnquist, 1971 (") .05
John Paul Stevens, 1975 (Ford) .25
Sandra O’Connor, 1981 (Reagan) .48
William Rehnquist, 1986 (") .05
Antonin Scalia, 1986 (") .00
Robert Bork, 1987 (") .10
Anthony Kennedy, 1987 (") .37
David Souter, 1990 (Bush) .33
Clarence Thomas, 1991 (") .16
Well. Lots of interesting things here. Let’s see:
[li]All of Eisenhower’s appointees were perceived to be moderate to liberal. This includes Brennan, one of only three men to rate a full 1 – the most liberal you can get – and Warren, who was a solid .75. Bottom line: nobody nominated by Eisenhower was expected to be conservative, even though Ike himself was a Republican.[/li][li]In fact, no nominee on this list was perceived to be conservative before being appointed until Warren Burger in 1969. After that, every nominee was seen as right-leaning through the Bush presidency. Further, most were seen as very conservative, the exceptions being O’Connor, Kennedy, and Souter. I don’t have the numbers on Ginsburg or Breyer, but I’d bet that neither were perceived to be as liberal as the Nixon/Ford/Reagan nominees were conservative–I’d say no higher than .75 for either.[/li][li]Nobody’s gone right since Felix Frankfurter, hmm? Well, correctly or not, Abe Fortas was seen by the contemporary press as less liberal when standing for the chief justiceship than upon his initial appointment to the bench just three years before–from 1.00 to .85. Conversely, Rehnquist’s rating of .05 didn’t change at all in the fifteen intervening years between nominations.[/li][li]Byron White was viewed as a moderate when taking the bench–more conservative than the Republican nominees preceding him–and proceeded, especially in later years, to vote closely with conservatives like Rehnquist on most issues. He most definitely was not indicative of a mainstream Democratic ideology in 1960, especially considering that stalwart liberals William Douglas and William Brennan were nominated before White, and stayed very much to his left every year thereafter.[/ul][/li]
Unfortunately, I don’t have hard data about the perception of Roosevelt and Truman appointees–Black, Reed, Frankfurter, Douglas, Murphy, Stone, Byrnes, Jackson, Rutledge, Burton, Vinson, Clark, and Minton–at the time of their nomination. If someone wants me to, I can sketch out a synopsis of each of their appointments, and the quality of the opposition.
This post’s long enough, however, so I’ll close with one more statistical salvo: Liberal/conservative voting tendencies of every justice between 1953 and 1991. This excludes Murphy, Stone, Byrnes, and Rutledge, who finished their terms prior to 1953, and Thomas, Ginsburg, and Breyer, who served afterwards. (I feel it’s a safe statement, though, to say that Thomas was nominated as a conservative and has more than amply filled that role, and that Ginsburg and Breyer were nominated from the center-left and have not strayed. Keep in mind also that Souter has moved distinctly to the left since his initial session, and is one of two modern justices–Harry Blackmun is the other, mostly because of his changed stances on abortion and the death penalty–who I feel have become more liberal than the initial expectation.)
The Congressional Quarterly publication analyzed each position by each justice from 1953 to 1991, and gauged those positions on a liberal-conservative scale. They broke the issues down into eleven classifications–criminal procedure, civil rights, First Amendment, due process, privacy, attorneys, unions, economics, federal taxation, federalism, and judicial power–as well as a blanket “civil liberties” category which encompasses criminal procedure, civil rights, First Amendment, due process, privacy, and attorney issues.
Here’s their definition of what constitutes a “liberal” position:
Whew. Then they’ve got a helluva lot of numbers. Let me give you their summary of civil liberties positions, with a few of my comments thrown in:
So there you are. Of those appointed from 1953-1991 who were perceived upon nomination to be liberal, Harlan and Stewart turned out relatively moderate, as did every Truman appointee (Burton, Vinson, Clark, Minton) and two Roosevelt appointees (Frankfurter and Jackson). One justice nominated by FDR, Stanley Reed, actually proved to be conservative for at least his last four years on the bench. The rest–Douglas, Goldberg, Marshall, Fortas, Brennan, Warren, and for the most part Black–were indeed liberal on the bench.
Of those perceived initially to be moderate, Whittaker stayed true to form, while White veered a little rightward toward the end of his career (I’ve got stats on that, if you want them).
And of those perceived at the beginning to be conservative, Powell and Stevens turned out to be moderates, and Blackmun and Souter turned out to be liberals. The rest–Burger, Rehnquist, Kennedy, O’Connor, Scalia, and Thomas–have stayed pretty much true to form. (Not to mention that O’Connor’s initial rating was .48–it could be argued that she’s been more conservative than expected.)
Please define “lean left”. Outside of economic issues, in the US libertarians are seens as leftists. If the idea of total separation of church and state, and legalizing all drugs is “leftist” to you, we disagree about what leftism is. If I advocated these ideas at a US Libertarian party meaning, I could get along just fine.
I think in this particular context, “lean left” should be best understood to mean “votes in favour of upholding Roe v. Wade.” Supporting reproductive rights (and privacy rights in general), placing restrictions on capital punishment, strong separation of church and state are the general list of complaints, I believe. They don’t so much comprise any sort of unified liberal ideology as they do a collection of pet issues of a particular demographic amongst social conservatives.
Actually, the current court (including O’Conner) seems to be not so much liberal to me as erratic. They seem to have no particular doctrine or rationale for many of their decisions. In fact, I have no idea what they are thinking half the time. Of course, I am not a brilliant law scholar or privy to their provate conversations, but from an outsider’s perspective…
the process of jurisprudence, requiring the setting forth of reasoning by which the judge arrives at her result, tends to move an individual towards fairness, hence, what we see as “left”
this is because intellectual honesty (or it’s opposite) has a momentum of its own; as long as your legal system posits as a value"fundamental fairness" (and, really, I think that ALL legal systems do ) I expect that the exercise of intelectual honesty in an environment of open questioning, will cause to crumble the artificial constructs that the right needs to hide the fundamental UNFAIRNESS of their ideology.
From a practical standpoint, I don’t think I see the difference. Of course, the photonegative is said about Ford appointee John Paul Stevens. He’s now the most consistently liberal voice on the Court, and it seems clear to me that while his death penalty jurisprudence is the result of a change, otherwise he could be seen as for the most part remaining true to the core GOP principles that the GOP has now abandoned.
No, but I just do not think it is very convincing. We need to see more systematic data on changes in judicial ideology over time. Then I can run some statistical tests to estimate the probability that these changes are simply attributable to random variation. The data as they stand now are inconclusive.