By Jeffrey L. Chidester
Judging from the Beltway tea leaves, President Obama’s nomination of Sonia Sotomayor will almost certainly yield the first Hispanic justice on the Supreme Court. While this historic first is something all Americans should celebrate, how Judge Sotomayor would deliberate on the bench is still an open question. And administration officials are surely keeping their fingers crossed.
In the case of judicial nominations, the gulf between expectation and reality is often very wide. Eisenhower’s selections of Earl Warren and William Brennan remain the model for picks gone awry, as the two joined together to lead perhaps the most actively liberal court of the 20th century. Eisenhower later called the Warren selection “the biggest damned-fool mistake I ever made.” Retiring Justice David Souter, who was nominated by George H.W. Bush, has been a thorn in conservatives’ sides for years due to his decisions on abortion, workers’ rights, and the death penalty. Even greater venom is reserved for Justice John Paul Stevens, another ill-fated Republican selection. A 2003 study by the National Academy of Sciences found Stevens, nominated to the Court in 1970 by President Nixon, to be the most liberal member of the Court.
On the other hand, the outcome is sometimes better. Antonin Scalia was confirmed by a vote of 98-0 in the Senate (interestingly, the two absent senators, Barry Goldwater and Jake Garn, were both Republicans). Many Democrats from the 99th Congress are still grieving over that one.
Stuart Spencer, who ran Ronald Reagan’s two gubernatorial campaigns as well as his 1980 and 1984 presidential bids, said judicial nominations are, by and large, a gamble. In an interview for the Ronald Reagan Oral History Project at the Miller Center of Public Affairs at the University of Virginia, Spencer recalled a similar case of unmet expectations: “When Reagan was Governor of California, he appointed a Chief Justice who looked like a safe bet. I was involved with that somewhat. He totally turned on him before he left in terms of rulings. . . . They’re lawyers. They’re judges. They’re going to do what the hell they want to do. You don’t know what you’re getting. I just don’t think any President really knows what he’s getting until he gets there and he serves.”
Spencer mentioned another historic nomination that occurred early in a new administration: the July 1981 choice of Sandra Day O’Connor. According to Spencer, while O’Connor “stayed the course” for Reagan, Supreme Court selections are still “a roll of the dice for a President. If they want to perpetuate their philosophy, they really have to do some vetting.”
Chances are good that liberal thinkers will be satisfied with the selection – a survey of Sotomayor’s opinions suggests a legal philosophy similar to Obama’s. But some of her rulings have rankled liberals in the past. For example, in 2002, she upheld the government’s “Mexico City Policy” to prevent the funding of international organizations that perform or support abortions. She wrote that the government is “free to favor the anti-abortion position over the pro-choice position.” Pro-choice groups are among the early outspoken opponents of Sotomayor’s nomination.
Before the activists on both sides bring the rhetoric to a fever pitch, we should remember that predicting future judicial reasoning is guesswork at best. Obama may get his Scalia, but he also may get his own Souter. Liberals and conservatives can only sit back and hope it breaks their way.
Jeffrey L. Chidester is Chair of the National Discussion and Debate Series at the University of Virginia’s Miller Center of Public Affairs. He is formerly research director for the Miller Center’s Ronald Reagan Oral History Project. He is the co-author, with Stephen F. Knott, of At Reagan’s Side: Insiders' Recollections from Sacramento to the White House.
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