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Leftward Drift Makes It Harder for Republicans to Confirm a “Moderate”

Some have called on the President and the Senate Republicans to compromise on the replacement for Justice Antonin Scalia: The President should nominate a “moderate” candidate whom the Senate would then confirm. But any such compromise is likely a bad deal for Republicans. In modern times justices have tended to drift left, unless they were anchored in the conservative legal movement or were already on the left. Ideological ratings of justice year by year show overwhelming evidence of leftward movement. Thus, a moderate today would very likely become at least moderately liberal over time.

There are two reasons for this leftward drift. First, the current of the bar runs left. Thus, justices are surrounded by a  dominant legal culture that pulls in one direction. This is not the first time that such a strong current has frustrated one side of the political spectrum. Despite their 24-year control of the Presidency, Jeffersonian-Republicans were unable to change the course of the Federalist Supreme Court. After nineteen straight years of Democratic-Republican Presidents, the Court even upheld unanimously the constitutionality of the Bank of the United States—the bête noire of Thomas Jefferson.

Second, the accolades of our elites go to justices on the left. I already detailed how Ivy League colleges have given no honorary degrees to any of the current conservative justices, including Justice Scalia, who was in his lifetime the most historically important Justice, although liberal ones were frequently garlanded. More generally, the press and the professoriate lionize justices for growing on the Court.   Justices are human, and continual flattery eats away at the apparently most granite of convictions.

Curtis Bradley and Neil Siegel have suggested that there is a convention suggesting that at least if the President nominates “a relative moderate” the Senate Republicans should not object. This convention would be built on a few previous instances of confirmations in election years, like that of Justice Kennedy in 1988. But conventions, unlike textual commands, are inferences from history. Because history never repeats itself, the precise boundaries of such a convention are not clear. The vacancy that Kennedy filled did not itself occur in an election year, and the late confirmation was entirely due to the defeat of a previous nominee, Robert Bork. And the strong tendency of moderates to drift left provided another reason for the Democrats to confirm Kennedy that does not apply to the current vacancy.

The American structural Constitution, unlike the British Constitution, should not be understood  as a series of conventions but a set of rules in the Constitution’s text. And the rules here are simple and clear. The President may nominate anyone he wishes, and the Senate may confirm the nominee or decline to do so at its collective pleasure. It is up to citizens to judge who is making wise use of these constitutional powers.

Reader Discussion

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on February 16, 2016 at 13:59:04 pm

I nominate nobody really. I mean it is a tough job and it is debatable whether nobody really or is that anybody really can do the job.
Oops, we already tried the moderate "nobody" trick - wasn't that David Souter?

I would nominate Mr Beaver - but as he is averse to prayer, I don't think he would be able to take an oath or swear a witness!

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gabe
on February 17, 2016 at 00:34:21 am

This post raises more expectations than it satisfies. My questions:

1) Any likely candidates who are regarded "moderate" b/c really strong on religious liberty?

2) Any likely candidates who are regarded "moderate" b/c really strong on restraining executive and administrative-state power?

3) Any likely candidates who are regarded "moderate" b/c they espouse a philosophy of qualified or partial originalism, one that they can make a coherent liberal case for? My skimming of Jack Balkin's book left me unimpressed by his "living originalism," but it was a very quick skim, and there are surely others out there defying the usual mold.

Numbers don't matter here, really.

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Carl Eric Scott
on February 17, 2016 at 09:56:26 am

The American structural Constitution, unlike the British Constitution, should not be understood as a series of conventions but a set of rules in the Constitution’s text. And the rules here are simple and clear. The President may nominate anyone he wishes, and the Senate may confirm the nominee or decline to do so at its collective pleasure. It is up to citizens to judge who is making wise use of these constitutional powers.

Well said. The Constitution lays out the parameters -- including remedies. If Obama doesn't care for how the Senate responds to his nominee, he can pursue his remedies. They might include seeking mandamus to compel an action. But I suspect it basically includes simply appealing to voters.

Likewise, enough with the whimpering about executive excess. If you don't like what the executive is doing, pursue your remedies -- including appealing to voters. But otherwise, I'd rather be spared all the sanctimonious pearl-clutching about how Obama hasn't conformed to this or that person's view of what is "conventional." As McGinnis points out, politicians aren't bound by convention -- just by the threat of another party seeking remedial action. No limits, only consequences.

That said, why should we think that the British constitution should be understood as a series of conventions? I'm intrigued by this distinction.

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nobody.really
on February 17, 2016 at 10:07:26 am

I nominate nobody really.

Wow -- the Republican presidential candidates recommended that Obama do this; Republican Senators recommended this; and now gabe? It's a groundswell!

I'm very flattered -- and since I'm going to be in the market for judicial clerks, please get those resumes ready!

I don’t think he would be able to take an oath or swear a witness!

Hm. We let witnesses affirm in lieu of swearing to tell the truth. Do we also let officials affirm in lieu of swearing an oath of office? I've never encountered this question before....

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nobody.really
on February 17, 2016 at 11:00:49 am

"why should we think that the British constitution should be understood as a series of conventions? I’m intrigued by this distinction."

Yeah, me too!

Is it because *it* is unwritten?
Or because as Blackstone said whatever the Parliament determines IS constitutional, thus usurping, as it were, the "time immemorial" traditions of the UK constitution?
Or is it simply a convention that whatever the "parliament decides" is final.

any legal beagles out there have an answer.

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gabe
on February 17, 2016 at 14:31:02 pm

When "progressives" talk about nominating a "moderate," they mean, at most, some somebody who has not publicly expressed views, "moderate" or otherwise, on the contentious issues before the Supreme Court. Such a person, once placed on the court, will inevitably fall into line with the reigning leftist orthodoxy of the law schools, bar associations, and media, for the reasons expressed in the post.

Of course, by progressive lights, the four leftists on the Court are already "moderate," and any disagreement with them from the right is by definition extremist. They would regard another Ruth Ginsberg as "moderate," which I suppose such a jurist would be when compared to the leftmost reaches of the legal academy. What advocates for "compromise" probably have in mind is some prominent practicing corporate attorney who can be fobbed off on dim-witted Republican Senators as "moderate" by virtue of the fact that he or she has represented their own donors, even if this person has endorsed the leftist position on every hot-button issue that has come or is likely to come before the Supreme Court.

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djf
on February 17, 2016 at 14:49:37 pm

See Article 2 Section 1 of the US federal Constitution. The last paragraph reads "Before he enter on the execution of his office, he shall take the following oath or affirmation:--'I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.'" So it's right there in the text that affirming is acceptable--and it's not even an Amendment, but original text.

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Someone or Other
on February 17, 2016 at 16:28:56 pm

Well, sure, that's the original text. But what could it possibly mean? :-)

Nice catch.

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nobody.really
on February 17, 2016 at 17:54:26 pm

Michael Rapapport weighs in in the National Review here:

http://www.nationalreview.com/article/431313/supreme-court-recess-appointment-will-president-obama-do-it

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Scott Amorian
on February 17, 2016 at 19:21:45 pm

It probably means that the President shall have unlimited power to make, interpret, and enforce laws and regulation at will, unencumbered by any legislative process, limitations, or private rights. Alternatively, that the sole power of Congress shall be the passage of Enabling Acts authorizing the President to make, interpret, etc etc etc.

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Someone or Other
on February 19, 2016 at 10:07:22 am

Someone:

"..unencumbered by any legislative process..."

Yes, it would appear as if the Legislative had decided that "someone else" can do this!!!

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.