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March 25, 2016

SCOTUS Nominee A Predictable Liberal

  Atlanta Journal Constitution

President Obama has announced Judge Merrick Garland, chief judge for the U.S. Court of Appeals for the D.C. Circuit, as his Supreme Court nominee to replace the recently deceased conservative icon Justice Antonin Scalia. The president praised Garland for “his decency, modesty, integrity, even-handedness and excellence” and as a consensus builder.

What the president was subtly alluding to in his carefully worded statement is that Garland is a moderate liberal, not an ideologue, and thus hinting at the possibility that Garland just might be a liberal “swing vote.” That’s a justice who occasionally crosses over to vote with the opposing ideological side.

Don’t hold your breath. In recent decades, it seems only Republican Supreme Court picks become swing votes; liberals hold fast to their liberalism.

When President Bill Clinton nominated Ruth Bader Ginsburg to the Court, the president and the media praised her for being moderate and fair. Ditto for Obama’s two previous Supreme Court nominees, Sonia Sotomayor and Elena Kagan. Those three, along with Stephen Breyer, also a Clinton appointee, make up the Court’s liberal wing.

On issues where conservatives and liberals divide along ideological lines, the Court’s liberals vote their liberalism. Not one of them is considered a swing vote.

Take, for example, the 2012 vote on whether the federal government could require citizens to buy health insurance. No one seriously believed any of the four liberals would oppose the mandate. All of the discussion was whether the current swing vote, Anthony Kennedy, a Reagan appointee, or perhaps Chief Justice John Roberts, a George W. Bush appointee, would vote with the liberals.

Roberts did in 2012, and both Roberts and Kennedy voted with the liberals in a follow-up Obamacare decision in 2015.

Everyone knew the liberals would march in lockstep.

Prior to Kennedy, Sandra Day O’Connor, another Reagan appointee, was the swing vote on the Rehnquist Court.

When Patrick D. Shushereba looked at the role of the Court’s swing votes from 1981 to the present, there were only two associate justices who fit the description over a 35-year period: O’Connor and Kennedy.

Of course, Justice David Souter, a George H.W. Bush appointee now retired, couldn’t really be called a swing vote — because he was a reliable liberal vote.

Prior to Kennedy and O’Connor there was Lewis Powell, a Nixon appointee. Powell was considered a moderate Democrat — they still had those then — and he arguably became a swing vote.

Oh, did I mention that Republican-appointee Powell joined the Court’s majority in upholding Roe v. Wade?

And then there was Potter Stewart, an Eisenhower appointee, who some consider the Court’s swing vote during part of his tenure.

Are you beginning to detect a pattern here? Republican presidents often nominate judges who go rogue on important issues that divide conservatives and liberals. Democratic presidents don’t.

It is a little harder to identify swing votes and their impact the further back you go, in part because ideology played a smaller role in nominations and because there were conservative Democrats and liberal Republicans.

When Robert E. Riggs published in the Hofstra Law Review (1993) his historical look at the Court’s 5-4 decisions between 1900 and 1990, he found a significant change over time. Between 1901 and 1910 an average of 2.6 percent of the Court’s cases resulted in a 5-4 split; between 1981 and 1990 there was an average of 23 percent — a nearly 10-fold increase.

One swing vote can make a lot of difference, especially today.

Judge Garland is unquestionably qualified for the Supreme Court, but while he might have a great legal mind there is little reason to think he would be anything other than a reliable liberal vote—because virtually all of the Court’s liberals are reliable liberal votes, and have been for decades.

Merrill Matthews is a resident scholar with the right-leaning Institute for Policy Innovation in Dallas and writes weekly at Rare.us.


 

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