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The Senate’s Influence over Supreme Court Appointments

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5 Responses

  1. Ken Rhodes says:

    You wrote “For example, David Souter and John Paul Stevens turned out to be far more liberal than the Republican presidents who appointed them (Bush I and Ford, respectively). These presidents both faced very liberal Senates when they selected Souter and Stevens.” Then asked “Are nominees like Souter and Stevens anomalies or part of a larger pattern of senatorial constraint?”

    I couldn’t tell you about Stevens; his tendencies are enigmatic. But I think that for Souter, the answer is a definite “No.” Here is a paragraph about Souter on the PBS website, on the page titled Supreme Court History–Biographies of the Robes:

    Although [Souter's] appointment was intended to increase the number of conservative members of the Court, Souter had issued very few opinions in federal cases and his record provided little indication of how he would vote. The press termed him a “stealth” candidate, and liberals hoped he would prove to be moderate, at least. In his first year, while he wrote few opinions, his votes helped to create a new conservative majority on the Court. However, over time Souter moderated his approach, and he issued opinions supporting a constitutional right to privacy, strict separation between church and state, and defending federal interstate commerce powers. He became aligned with the Court moderates, O’Connor and Kennedy, and, to the dismay of those who had supported his appointment, he helped keep conservatives from dominating the Court. … Souter has increasingly assumed the role of intellectual leader among the moderates and has helped build a Court consensus on a number of issues.

    Another you didn’t mention, but one whose role on the Court was dramatically different than expected, was Earl Warren. From the same PBS webpage:

    In 1953, President Dwight Eisenhower appointed [Warren] Chief Justice of the Supreme Court, commenting, “He represents the kind of political, economic, and social thinking that I believe we need on the Supreme Court.” In the next few years Warren led the Court in a series of liberal decisions that revolutionized the role of the Court. Eisenhower later remarked that his appointment was “the biggest damned-fool mistake I ever made.”

    It should also be noted that Warren was appointed by an Eisenhower who had a totally free hand, with a Republican senate led by Majority Leader William Knowland and Majority Whip Leverett Saltonstall.

    Warren, and to a lesser degree Souter, seem to illustrate the principle that you can’t always predict how good people will react to great responsibility.

  2. Orin Kerr says:

    Ken, if you look at how Souter voted, I think it’s fair to say that he was on the liberal side of the Court’s ideological spectrum for the great majority of his tenure. More here:
    http://www.volokh.com/posts/1241373223.shtml

  3. Ken Rhodes says:

    Quite so, Orin, but my point was not about his career on the bench. Rather, it was in response to the theory that a Democratic Senate somehow influenced the appointment of a liberal judge. Souter was not thought of as a liberal judge when he was appointed. Only later, he evolved into the Souter we have known. Thus my closing sentence, above.

  4. Your final sentence says it all. The serious weight and responsibility of being a Supreme Court justice would really impact anyone. Whatever your political beliefs, this position requires a very sobering, honest approach to say the least. No one can know how this can impact an individual.

  5. Christine Chabot says:

    Thanks Ken, Orin, and Steven for the thought-provoking comments. I agree Souter was not perceived as a liberal at the time of his nomination. As Ken notes, however, he was a “stealth” nominee. Bush was constrained because he could not nominate someone with a more well-documented record of conservatism. This led to a Justice who sided with Democratic appointees for most of his career (my research uses Justices’ overall career records). My earlier paper, Mavericks, Moderates, and Drifters, also agrees with Orin’s take on Souter’s overall record. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1792145, at table 2.

    The point about Earl Warren raises another fascinating question: Do Justices simply vote independently of all political forces surrounding their appointment? This would mean presidents don’t fare much better than the Senate. History is rife with examples of disappointed presidents, and I will discuss my empirical research on this question in future posts.