At Public Discourse, James Phillips (Ph.D. candidate, UC Berkeley): Picking a Justice Who Can Resist the Lure of the Liberal Side: Recommendations to the Next Republican President. From the core of the argument:
… The problem is empirical. The best predictor of how one will perform in a certain job is how one has previously performed in that very job. We are more confident that a surgeon will operate flawlessly when he has numerous flawless surgeries under his belt. We trust that a pilot will land the plane without a hitch because she has done so dozens of times before. This is obviously problematic for filling a position on the Supreme Court, since no other legal position, including judicial ones, are quite like being at the top of the pyramid.
That is because in the short term, there is nothing to check a Supreme Court justice other than a justice’s conscience and his or her theory of what the Constitution demands. …
So what is a conservative president to do? In the past, most presidents have deemed federal court of appeals experience as a prerequisite to being elevated to the Supreme Court. …
Unfortunately, experience as a federal court of appeals judge (or the state equivalent in Justice O’Connor’s case) is a poor indicator of what type of US Supreme Court justice one will be. And experience as an attorney (in Justice Kagan’s case) is an even poorer indicator. The reason is that appellate judges are hemmed in by Supreme Court precedent—a constraint not felt by those elevated to the Supreme Court. And attorneys are making arguments for their clients. So whether one had spent one year on a court of appeals or a dozen, the signal of how that person will be under none of these effective constraints is murky at best. The signal is downright opaque for someone who was a lawyer. …
Fortunately, though, there is one legal position in the United States that, under certain conditions, analogizes rather well to being a US Supreme Court justice: state supreme court justices. When it comes to interpreting their state’s constitution and statutes, no one looks over the shoulder of state supreme court justices: they are equivalent to a US Supreme Court justice interpreting the federal Constitution and statutes. If a state supreme court justice acts like a Justice Thomas or Justice Scalia when interpreting her state constitution or statutes, she will almost certainly do so if put on the US Supreme Court. Thus, their true colors come out since they—under certain conditions—have practically no more constraint than their federal counterparts.
(Plus some cool graphs on how Justices trend liberal over time).
Posted at 6:04 AM