At a White House stag dinner in February 1954, while the Brown v. Board case was still under consideration (issued three months later), President Dwight D. Eisenhower took Earl Warren by the arm and asked him to consider the perspective of white parents in the Deep South. “These are not bad people,” the president said. “All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big black bucks.” Warren recounted this incident in his memoirs some 20 years later. Ever decorous, he sanitized the slur from “black bucks” to “overgrown Negroes.”
Warren also wrote that Eisenhower was said to have described his appointment as “the biggest damn fool thing I ever did.” Another version has it that when asked whether he had ever made any mistakes, Eisenhower replied, “Yes: two. And they are both sitting on the Supreme Court,” referring to Warren and William O. Douglas. Today, conservatives with hair on fire are raging at two recent votes rendered by Chief Justice John Roberts and Associate Justice Neil Gorsuch that are characterized as a betrayal to conservative orthodoxy and the process that elevated them to the Court.
Roberts and Gorsuch appalled party officials and conservative court watchers with their respective votes in two recent cases: one striking down a Louisiana law that would have dramatically curtailed abortion access, the other extending workplace discrimination protections to LGBTQ Americans.
The extent to which appointment “mistakes” or later “betrayals” by justices might be avoided was signaled recently by Sen. Josh Hawley (R-MO), who told POLITICO last month he wasn’t “wild” about the President releasing a new list before the November election: “I don’t love the idea of just doing over what we have been doing in the past…. When it comes to this whole process, we have to ask ourselves, is this vetting process, is this really working?”
“I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided.”
“I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided. By explicitly acknowledged, I mean on the record and before they were nominated. I don’t want private assurances from candidates. I don’t want to hear about their personal views, one way or another. I’m not looking for forecasts about how they may vote in the future or predictions. I don’t want any of that. I want to see on the record, as part of their record, that they have acknowledged in some forum that Roe v. Wade, as a legal matter, is wrongly decided.”
For other conservatives, the litmus testing could be expanded to include a demand for evidence that Brown v. Board was wrongly decided. Perhaps others might require appointees to assert that Marbury v. Madison was a mistaken ruling, wrongly deciding that the Supreme Court has the authority to declare laws passed by Congress to be unconstitutional. The populist Thomas Jefferson labeled SCOTUS “despotic” in its Marbury decision (1804 letter to Abigail Adams).
There are some 870 federal judges, including SCOTUS justices, subject to Senate confirmation and called Article III appointments. P45’s administration in a single term has channeled 200 to lifetime tenure on the nation’s courts, including two SCOTUS appointments. Perhaps more notably, at the connivance of Senate Majority leader Mitch McConnell (R-KY), one of those owes his position to the McConnell Rule, which ditched Obama’s nomination of Merrick Garland. By contrast, in two terms Obama appointed 329 federal judges, including two to SCOTUS.
Since the Eisenhower mistakes, Republicans (then, conservatives now) have for the past six decades assiduously fashioned a nomination strategy for federal judges, creating a pipeline process from law school through a more rigorous vetting stage largely managed by the Federalist Society, Heritage Foundation, and the Judicial Crisis Network.
Since the Eisenhower mistakes, Republicans (then, conservatives now) have for the past six decades assiduously fashioned a nomination strategy for federal judges, creating a pipeline process from law school through a more rigorous vetting stage largely managed by the Federalist Society and the Judicial Crisis Network. P45’s publication in 2016 of a list of nominees represented a new strategy in politicizing appointments to the high court.
Roberts and Gorsuch represent examples, like Warren, that political ideology and jurisprudence are not synonymous, compatible, or even discernable under questioning.. To be sure, Warren and Eisenhower were also political foes in California, which may have contributed to their friction. Gorsuch and Kavanaugh, it is to be noted, were not named on P45’s 2016 list of nominees offering a rationale to adhere to his picks.
The entire scenario of dictating that federal judicial appointments adhere to a judicial ideology serves only to diminish public trust and confidence in a judicial system that has prided itself on fairness.
But P45’s interest appears clearly tied to the potential to draw votes, particularly from the more extreme wings of the conservative movement. In creating a list of candidates, choices are by definition limited. Moreover, such a list with vetted candidates becomes fodder for Senate questioning and creates targets for partisan sniping. That was the Kavanaugh nomination. The entire scenario of dictating that federal judicial appointments adhere to a judicial ideology serves only to diminish public trust and confidence in a judicial system that has prided itself on fairness. The loss of esteem and reputation for the federal judiciary promotes cynicism about its decisions.
What ideologues ignore, whether on the right or the left, is that the process of jurisprudence is philosophical, not political.
What ideologues ignore, whether on the right or the left, is that the process of jurisprudence is philosophical, not political. The onus upon judges is to arrive at a just and fair result based upon facts and the law. There is no formula to guide or define that search. Nor is it a process that emerges from words as conservatives would assert, such as textualism or originalism. Jurisprudence, as with democracy, evolves along with the maturation of civic and social values as well as that of citizenship. Judge Frank Easterbrook, a colleague and sometime critic of the late Supreme Court Justice Antonin Scalia, fashioned this point in the foreword to a book by Scalia:
Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption understood those words. The older the text, the more distant that interpretive community from our own. At some point the distance becomes so great that the meaning is no longer recoverable reliably. [Courts] should declare that meaning has been lost so that the living political community must choose. The imperative in the jurist’s mind clearly differs from that of the ideologue who demands a fixed outcome, or at least one the ideologue prefers.
Sen. Hawley’s comments and P45’s announcement of a new list of SCOTUS nominees are signals that the conservative right is preparing to abandon any pretense of equitable evaluation of candidates in favor of predictability of judicial rulings. . . . in effect, the elevation of justices who are primarily spokespersons.
Eisenhower seemed reasonably clear in his political preference when speaking with Warren regarding school integration. George W. Bush did not make any public statement concerning his political expectations arising from his appointment of Roberts. The same cannot be said for P45, who has bluntly sought loyalty from his nominees. He threatened to withdraw Gorsuch’s nomination after hearing that the jurist was critical of P45’s escalating attacks on the federal judiciary in private meetings with legislators.
On August 5, 2020, VP Michael Pence expressed “disappointment” in CJ Roberts for his recent decisions noting P45’s promise to produce a list of nominees prior to Election Day stating that for the next four years “he’ll keep his word and appoint more principled conservatives.” Evangelical supporters can hear the dog whistle.
What seems clear is that conservative ideologues are increasingly disposed to demanding ever more particular commitments from federal court nominees as expressed by Senator Hawley and the creation of a new list of SCOTUS candidates by P45. While these tactics are intended to eliminate “mistakes” or disappointment, in the reality of judging, jurists follow a different trajectory.