Hell, if we’re gonna talk about this, let’s do it right.
In his OP, astorian has made the following statements:
[ul]
[li]Supreme Court justices, if they shift, always shift to the left.[/li][li]Supreme Court justices “often turn out more liberal than expected.”[/li][li]Seemingly conservative justices turn out, once appointed, to have “evolved into pinkos.”[/li][li]Democrats “are almost never disappointed by their Supreme Court nominees.”[/li][li]The last Democratic appointee to turn out more conservative than expected was Felix Frankfurter (in 1939).[/li][/ul]
Now, the first sentiment is hyperbolic: By naming Felix Frankfurter as a rightward-shifting justice, astorian’s implicitly saying that since Frankfurter, Democratic appointees to the High Court have been more liberal than Republican appointees have been conservative. Right? Well, let’s see.
First, it should be noted that astorian’s characterization of Frankfurter as veering right is not entirely accurate–which is the trouble with having a strict liberal/conservative dichotomy. Frankfurter was nominated by FDR as a staunch New Dealer, and this he proved to be. His overriding judicial philosophy was that the legislature, not the judiciary, should make laws and set policy; thus, he backed much of the New Deal’s social and economic legislation. In later years, however, his minimalist approach to the bench caused him often to break with other New Dealers. In short, he broke with his personal beliefs to act as best he could as an impartial agent of the Constitution:
Similarly, he broke with the majority on civil liberties issues; voting, for instance, in favor of a West Virginia statute compelling children to salute the American flag. The best summary of his career on the bench comes from his dissent on Baker v. Carr, a redistricting case:
To sum up, then, Frankfurter isn’t easily described as either liberal or conservative–he was a classical noninterventionist, and one who served FDR’s policy needs perfectly. What happened was that under the Warren Court, the Supreme Court became much more of an instrument of social change–presuming to be guided by, or to guide, public opinion itself, with minimal legislative cues. This was antithetical to Frankfurter’s judicial philosophy, and so he battled against activist justices with whom he privately agreed–eschewing not their beliefs but the activism itself.
Now then. 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.” Iz, spare me the liberal media claptrap.) 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:
[ul][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. astorian, please remove him from your list of justices who proved to be surprisingly liberal. Ditto Warren, in fact, 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]The nature of Eisenhower’s appointees pretty much invalidate your explanation of Whizzer White, astorian. He 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.[/li][/ul]
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.)
Any questions?