>How do presidents and Senators get it “right?”
When President George W. H. Bush named David Souter an associate Supreme Court judge, little did he know that he would morph into a liberal jurist especially since 1992 in Planned Parenthood v. Casey and in Bush v. Casey, 2000. He began to vote with liberal judges Sandra Day O’Connor, Ruth Bader Ginsburg, and John Paul Stevens whom he considered to be the “smartest” justice.
Paradoxically, it was Mr. Conservative, Ronald Reagan, who named Stevens to the highest bench in the land.
If baseball general managers and field managers find it difficult to draft the players that will win batting crowns and take their teams to the World Series, it is infinitesimally harder to look at candidates for the Supreme Court and predict how they will vote on hundreds of different issues that will come before the court.
I offer the example of David Hackett Suter. President George W.H. Bush was advised by John Sununu and former Republican Senator Warren Rudman that this man was conservative — and he was in many ways — and would be a great nominee to the Supreme Court.
Liberal Senators Edward Kennedy, John Carey, and others strongly opposed that appointment. Yet as it turned out, Souter retires having been with the majority of most liberal voting done in that court the past 19 years.
Making matters even more difficult to judge by those pinhead experts in Washington, Souter spoke of his admiration for the conservative Justice John Marshall Harlan II of the Warren court, as well as for liberal Justice William Brennan of the same court, during his confirmation hearings.
If George Bush was fooled, so were many other Republicans including his more conservative and moderate supporters. In that group include President Reagan who learned that a judge’s leanings may have nothing to do with how he subsequently turns out when confronted with controversial issues presented to the highest court in the land.
Souter had been mentioned by the New York Times as one of Reagan’s four top nominees for the Supreme Court slot that eventually went to Anthony Kennedy, who turned out liberal, not conservative as Reagan wanted. Warren Rudman had recommend both Kennedy and Souter to Reagan’s chief of staff Howard Baker for both a federal judgeship and the Supreme Court.
One of the lessons for George Bush should have been: Never listen to Warren Rudman, he’s a liberal not a conservative. Rudman wrote in his memoir that he had “suspected all along” that Souter would not “overturn activist liberal precedents.” Sununu later said: “In spite of it all, he’s a good friend. But I’ve always known that he was more liberal than he liked the world to think he was.“
The question now that Republicans have said they will not filibuster in the Senate over Sotomayor’s nomination is how sure is Barak Obama that his nominee will vote liberally?
Judging by our history with Souter, the answer is that when it comes down to individual issues, no matter what they said in the hearings, these judges will vote their hearts and sometimes be liberal and sometimes be conservative. In other words, Obama won’t know until the issues come before the court.
Is all this ballyhoo that took up so much television prime time just a sham? Is it just a forum for Senators to show how much they know about the law, for example, Sen. Orin Hatch (R-Ut), or to prove one’s incompetence about the law, Sen. Barbara Boxer (D- CA) and Sen. Al Franken (D-MN)?
When you come down to it, is it just a crap shoot, anyway? The answers are yes!