Boomerang Justices -- Ouch!

To extend his political legacy through his Supreme Court appointments, President Bush will have to overcome a fairly common historical phenomenon -- the tendency of nominees to become ideologically unpredictable after their confirmation. Examples abound, especially of supposedly moderate or conservative nominees becoming more liberal.

President Eisenhower was deeply disappointed that Earl Warren and William J. Brennan, two of his five selections for the court, turned out to be among history’s most liberal justices. In addition to pressing desegregation much harder than Eisenhower wanted, Warren and Brennan led an expansion of constitutional rights.

President Nixon suffered a similar fate with his nomination of Harry Blackmun. Conventional wisdom pegged Blackmun as a reliable conservative, the “Minnesota twin” of conservative Chief Justice Warren E. Burger. Yet, over time, Blackmun became a leading liberal voice in many areas of the law, writing the ultimate bete noire of conservatives, Roe vs. Wade.

Two sitting justices, Anthony Kennedy and David Souter, also surprised their nominators. President Reagan chose Kennedy for his supposedly predictable conservatism. But once on the court, Kennedy joined the liberal wing of the closely divided Rehnquist court on many key issues, including abortion rights, and has become an outspoken champion of recognizing constitutional protections for gays.

Occasionally, the political transformation of justices works in reverse.

President Franklin D. Roosevelt nominated Harvard Law School professor Felix Frankfurter, expecting him to carry his liberal political views onto the court. Frankfurter, though, subsequently emerged as a leading judicial conservative.

These are cautionary tales for Bush. But it really shouldn’t be too hard for him to maximize the chances of picking someone who will stay true to his ideological perspective.

All Bush needs to do is understand why his predecessors sometimes failed.

Political surprises on the Supreme Court occur for three reasons: Presidents misapprehend their nominees’ views. Justices remain fundamentally true to their judicial philosophies, but issues facing the court change around them and thereby create the impression that they have altered their politics. Finally, the majestic power of the court seduces some justices away from their political moorings so they can better serve as a moral beacon.

Souter is a classic example of presidential miscalculation. Concerned about a protracted battle with a Democratic-controlled Senate, President George H.W. Bush chose the New England Republican as a “stealth candidate” -- someone with a minimal paper trail but who White House advisors thought would be a reliable conservative vote.

Souter’s confirmation hearing revealed the error of this strategy. The nominee traced his political roots to the moderate Republican tradition of Abraham Lincoln and displayed no interest in the pro-states’ rights, pro-religion, anti-Roe agenda of modern judicial conservatives. In his 14 years on the court, Souter has stayed true to his deep moderation.

Hugo Black illustrates the case of a justice who remains faithful to his judicial philosophy while the jurisprudential world turns around him. Roosevelt nominated him in the shadow of a legal crisis over the New Deal. In the early 1930s, the court’s old guard used a variety of amorphous legal doctrines to block many of Roosevelt’s economic reforms. Black, a key Roosevelt ally, was picked to stand up against such broad judicial discretion.

In his more than three decades on the court, Black held fast to his beliefs and quickly emerged as an intellectual leader in the fight against interpretive doctrines that increased judges’ discretion. For much of Black’s tenure, his opposition to reading the Constitution’s open-ended phrases to strike down legislative acts produced liberal results.

By the 1960s, however, this methodology put Black on the opposite end of the political spectrum.

When the liberal justices of the Warren court began reading “unenumerated” rights (like the “right to privacy”) into the Constitution to strike down illiberal laws, Black said they were resorting to the same loosey-goosey interpretive methods of the 1930s court. He was promptly labeled a conservative for refusing to go along.

Then there are justices who surprise their presidential sponsors because their thinking significantly “evolves” while on the court. It’s reasonable to expect justices to change some of their views. To think otherwise would imply that nominees are incapable of learning from the new facts and arguments that come before the court.

But something more than new experiences is at work here. The role of the court as the ultimate arbiter of law and justice has had a transformative effect on a certain type of justice. In particular, non-ideological justices with a strong sense of fairness have often become swept up in the court’s ability to use the Constitution’s vague but high-minded commands -- “due process,” “equal protection” -- to establish a moral agenda for the nation.

Kennedy represents the modern archetype. Though conservative, he never was regarded as an ideological warrior like nominee Robert Bork and Justice Antonin Scalia. Unsurprisingly, his votes in his initial years on the court were consistent with his conservative politics.

Over time, however, Kennedy has sided more frequently with the court’s more liberal wing. Judging from his opinions, dissents and speeches, he has developed a deeply romantic vision of the Supreme Court and relishes its power to give voice to American idealism -- even when those ideals clash with his personal preferences.

Whether the issue is the right to burn an American flag, a woman’s right to choose abortion or a gay’s right to engage in consensual sex, Kennedy’s elevated sense of the court’s purpose in history has led him away from conservatism toward a more liberal view of constitutional freedom.

To avoid an unpleasant surprise, Bush should make sure he knows the real views of his first nominee for the high court. That shouldn’t be difficult. The litmus tests in modern constitutional law are easily applied.

Second, he should choose a nominee with a deep sense of ideological commitment and an unsentimental attitude toward the role of the judiciary -- no Kennedy or Blackmun.

In other words, Bush should do exactly what he wants to do: name another Scalia or Clarence Thomas. No one will ever accuse them of “evolving.”