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A liberal letdown seems unlikely

When was the last time a Democratic president nominated a justice who turned out to be a real letdown for his supporters? The answer makes a strong point about Supreme Court politics.
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Given the Democrats’ majority in the Senate, it seems likely President Barack Obama's Supreme court nominee will be serving on the court when it begins its 2009-2010 term in October.

Liberal advocacy groups were quick to applaud the nomination of Judge Sonia Sotomayor and show confidence in her performance on the high court.

Nan Aron, the president of Alliance for Justice, a liberal advocacy group which worked to defeat President George W. Bush’s Supreme Court nominees, said she was “thrilled” with Sotomayor. Obama, she said, “is appointing judges who understand that the role of the courts is to give everyone a chance to be heard, to stand up for their rights, and get justice.”

But ask yourself this: When was the last time a Democratic president nominated a justice who turned out to be real letdown for his supporters?

It was almost 50 years ago, and that answer reveals a lot about Supreme Court politics.

Roster of conservative letdowns
It’s easy to find examples on the Republican side, especially in the past few decades. During the Reagan and Bush presidencies, conservatives bemoaned the fact that many of the Republican presidents’ appointees to the high court turned out be liberals, at least on issues such as gay rights, the death penalty and abortion.

The list of Republican nominees who have proven more liberal than expected on issues such as abortion is not short:

  • Harry Blackmun, nominated by Richard Nixon in 1970
  • Lewis Powell, nominated by Nixon in 1971
  • John Paul Stevens, nominated by Gerald Ford in 1975
  • Sandra Day O’Connor, nominated by Ronald Reagan in 1981
  • Anthony Kennedy, nominated by Reagan in 1987
  • David Souter, nominated by George H.W. Bush in 1990.

Abortion provides the best illustration of the letdown for many conservatives: Blackmun wrote the historic Roe v. Wade decision legalizing abortion nationwide in 1973 and he joined Stevens, O’Connor, Kennedy and Souter to form the five-justice majority in upholding it in Planned Parenthood v. Casey in 1992.

To find the last Democratic nominee to disappoint liberals you have to go back almost 50 years to Byron White, placed on the high court by his friend President John Kennedy in 1962.

White turned out to be conservative, at least on abortion and gay rights.

Why the disparity between so many conservative Supreme Court letdowns but few liberal ones?

More chances for disappointment
The most obvious reason comes back to basic math — Republican presidents have had far more Supreme Court picks. Thirteen of the last 19 appointments to the Supreme Court were made by Republican presidents.

Far more picks means far more chances to be disappointed.

But Republican presidents since Richard Nixon have usually had to contend with Democratic-controlled Senates in confirmation battles. They've had to weigh whether their nominees would be too conservative to get confirmed.

Nixon’s first two Supreme Court picks in 1969 and 1970 were rejected by the Senate. Only then did he turn to Blackmun, whose friend Chief Justice Warren Burger “swore by him, and vouched for him,” so Nixon and his aides “actually hoped they had pulled a fast one on their enemies,” said historian David Yalof, author of Pursuit of Justices, the leading work on the politics of Supreme Court nominations.

The defeat of Ronald Reagan’s nominee Robert Bork in 1987 and the hair’s-breadth confirmation of George H. W. Bush’s nominee Clarence Thomas in 1991 proved again how perilous the process was.

Almost all of the Republican “letdowns” (Blackmun, Powell, Stevens, Kennedy and Souter) were confirmed by Democratic-controlled Senates.

President Kennedy’s nomination of Byron White in 1962 illustrates how much less ideological the vetting of Supreme Court nominees was 50 years ago than it is today.

Kennedy had been White’s friend since 1939 when the two met in England. White had worked on Kennedy’s 1960 presidential campaign. He was relatively young (44) and highly accomplished — a Rhodes Scholar, a former Supreme Court clerk, and deputy attorney general under Robert Kennedy.

According to a biography of White by University of Chicago law professor Dennis Hutchinson, Kennedy didn’t examine White’s judicial views before picking him. White “was with us in the campaign, he had a good relationship with the president, and we just assumed that took care of the matter,” Kennedy aide Mike Feldman said later.

White angered liberals with his anti-abortion views, and in his majority decision in Bowers v. Hardwick which upheld Georgia’s anti-sodomy law in 1986. White scoffed that it was “facetious” to claim that gay people had a constitutionally protected right to privacy which would invalidate the Georgia law.

But on the signature Kennedy-era issues such as federal intervention to ensure equal rights for black Americans, White remained very much a Kennedy liberal.

Issues such as gay rights that became contentious later weren’t issues at all for the high court in 1962. There was no liberal or conservative position on gay rights in 1962 — so it could not be a litmus test for choosing a nominee.

As for the Republican nominees who turned out to disappoint conservatives, Yalof said some of the supposed surprises really weren’t surprises to those who were paying attention.

“There were concerns raised on the inside (of Republican administrations) about O’Connor and (Anthony) Kennedy at the time of their nominations. Remember, Kennedy was the third choice and was chosen by a president who was entering his lame duck year.”

Kennedy was Reagan’s third-choice pick for the court after Bork was defeated and nominee Douglas Ginsburg bowed out due to a controversy over his having smoked marijuana.

Nixon’s nominee Lewis Powell “was not really that much of a surprise either — he was a conservative Democrat chosen because he was strong on law and order, and that’s pretty much how he played out,” said Yalof. In 1971 when Nixon picked Powell he “was not even thinking about affirmative action or abortion… he was thinking of law and order and the need to appease the South.”

When Ford chose Stevens in 1975, Yalof said, he allowed Attorney General Edward Levi “to set a mostly non-ideological tone to the selection process that produced Stevens, who everyone knew was a moderate.”

Yalof said that Souter and Blackmun “were probably the biggest disappointments” to conservative Republicans since President Dwight Eisenhower's nominees Earl Warren and William Brennan in the 1950s.

And “Souter was a stealth candidate chosen because his record was so slim” on inflammatory issues such as abortion. Bush’s obsession with finding a stealth nominee came partly from his having observed the Bork battle and his wish to avoid a similar confirmation fight.

Another factor in the Souter nomination, said Yalof, was that "George H.W. Bush wasn’t really a passionate social conservative like Reagan" or his son George W. Bush. "When White House Chief of Staff John Sununu assured him that Souter would be a true conservative, that was good enough,” Yalof explained.

In the end, sheer numbers often determine the outcome in nomination battles. “If Obama had a 51-49 advantage in the Senate, he would face many of the same difficulties as Bush faced in 1990” when he chose Souter, said Yalof.

Obama’s 59 Democratic votes in the Senate make it exceedingly unlikely that Sotomayor will turn out to be a surprise to liberals — or the Democratic version of David Souter.