History shows Supreme Court justices often don't turn out the way presidents thought they would.
By BILL ADAIR, Times Washington Bureau Chief
Published July 3, 2005
WASHINGTON - President Dwight D. Eisenhower figured Earl Warren would make an ideal chief justice of the U.S. Supreme Court.
Warren, the Republican governor of California, had been a loyal supporter of Eisenhower in the 1952 election. Eisenhower said he chose Warren the next year because of his deliberate style and his "middle-of-the-road" philosophy.
Warren turned out to be one of the most liberal justices in history, leading the court to landmark rulings on civil rights and the separation of church and state. Eisenhower later said appointing Warren was "the biggest damn fool mistake I ever made."
As President Bush searches for someone to succeed Justice Sandra Day O'Connor, who announced her resignation Friday, the experiences with Warren and many other members of the Supreme Court provide reminders that justices often don't vote the way presidents expect.
Justice Byron White, an appointee of President John Kennedy in 1962, was expected to be a liberal, but often voted conservatively on personal liberty and law-and-order cases. O'Connor, named to the court in 1981 by President Ronald Reagan, was more conservative in her early years but gradually sided more often with the court's liberals.
Justice David Souter, an appointee of the first President Bush in 1990, has angered conservative Republicans by often voting with the court's liberals.
"We thought Justice Souter would vote differently than he turned out to vote," said Boyden Gray, White House counsel under former President Bush.
He said many presidents have been unhappy with their appointees.
"The landscape is littered with crushed expectations," Gray said. "You can never predict or control (how they'll vote). That's just absolutely a fact a life."
Not enough homework
Some justices defy expectations because the presidents who chose them didn't do enough homework.
That was the case with Souter, a state judge in New Hampshire who served briefly as a federal appeals judge before his nomination to the Supreme Court. Researchers who looked into his record found so little that the press dubbed him "the stealth justice."
White House aides "really didn't know much about him," said Eddie Lazarus, a former clerk for Justice Harry Blackmun and author of Closed Chambers, an inside look at the court. "That was their own fault."
It was difficult to assess Souter because he had been a federal judge for less than a year.
"Nobody knew what he stood for," said Paul Finkelman, a law professor at the University of Tulsa in Oklahoma.
The experience has prompted a refrain by many conservatives: "No more Souters."
For other vacancies on the court, presidents have nominated former politicians like Warren and White who have little or no judicial experience. The presidents assumed the nominees would follow their party's ideology, but it turned out the nominees had different ideas.
Mary Cheh, a law professor at George Washington University, said White was a New Deal Democrat who was in favor of "big government and federal programs." But he surprised many people by often voting conservatively on the court.
"He was consistent that he thought the court should stay out of the way of the legislature," Cheh said.
Transformations
Other justices have changed after they got on the court.
In her first few years as a justice, O'Connor was known as the "Arizona Twin" because she voted so often with Chief Justice William Rehnquist, one of the court's most conservative members.
Cheh says O'Connor's opinions in the early days were "very mechanical" and the only issue she was passionate about was states' rights.
But the longer she was on the court, "she became more sensitive to individual rights," Cheh said.
There was a similar transformation for Blackmun, an appointee of President Nixon in 1970.
Blackmun was a longtime Republican, so Nixon and his aides figured he would be a dependable conservative on the court. In his early years, he frequently voted with conservative Chief Justice Warren Burger.
But Blackmun increasingly sided with liberals and authored the 1973 opinion that is the flashpoint for many conservatives: the Roe vs. Wade decision on abortion rights.
Why the transformations?
Finkelman, the University of Tulsa professor, said getting a lifetime appointment to the nation's highest court leaves people free to make their own judgments without being bound by a rigid ideology.
"Their vantage point is altered," he said. "Having gotten to the pinnacle, the top of the highest mountain, they suddenly discover there is no place to strive for. They look at the world differently."
U.S. Rep. Tom Feeney, R-Oviedo, said it's more common for Republican appointees to morph into liberals than for Democratic nominees to become conservative. He blames it on the culture of Washington.
"When you surround yourself by other rich lawyers and liberal policymakers, you tend to grow out of touch with Joe Six Pack and Brenda Babysitter out there in the real world," Feeney said.
Lazarus, the former Blackmun clerk, said he agrees there is a seduction, but said it affects nominees who don't come to the job with a strict ideology.
"Once they get on the court, people who are not ideological get swept up in the majesty of interpreting the Constitution's beautiful but vague promises of due process and equal protection," he said. "That tends to draw them to the left."
Ideologues don't morph
The court's most consistent conservatives are Justices Antonin Scalia and Clarence Thomas.
They are the darlings of the right and the foes of the left because they rarely stray from conservative orthodoxy.
Legal analysts say they haven't morphed because they are strict ideologues who apply their principles to every decision. Many conservative groups are urging President Bush to nominate someone like Thomas and Scalia to be O'Connor's successor.
Liberal groups such as People for the American Way are saying just the opposite, urging Bush to pick a moderate.
But how can either side know what they're getting? How can they be sure they won't get another Warren - or another White?
Both sides are scouring the records of possible nominees to look for clues about how they might vote: judicial opinions, speeches and law review articles.
Ralph Neas, president of People for the America Way, said Bush's nominee "is probably going to be either a judge or an academic with a lengthy record that is faithful to the record of a Thomas or a Scalia."
Gray, the former White House counsel, said Republicans have learned lessons from the nomination of Souter.
"The most important indicator is their track record - what have they said, what have they written. I think if you have a candidate who has a known record, that is the best," Gray said.
Cheh, the George Washington University law professor, said Bush and his aides have learned from history and will thoroughly research possible nominees to make sure they get an ideologue.
"The Republicans," she said, "have made this a high art."
--Washington bureau chief Bill Adair can be reached at 202 463-0575 or adair@sptimes.com
