by Matt Barr

When good justices go bad

Red State Law (link via JurisPundit) ticks off justices appointed by Republicans who turned out to be not so much what the appointing president's supporters would have liked: Earl Warren (Eisenhower); William Brennan (Eisenhower); Harry Blackmun (Nixon); John Paul Stevens (Ford); Anthony Kennedy (Reagan); David Souter (Bush 41). He notes that Democratic presidents are almost never bitten so.

The theory Rick at RSL has for this is attractive: judges who are Democrats are likely to be more homogenous in their beliefs; judges who become Republicans are more diverse. I don't think that's it, though. If, say, Kennedy had shown any signs he'd treat the constitution with the regard he has as a lawyer or judge, Reagan wouldn't have touched him. For the theory to work, Republicans have to be both more diverse and good at seeming homogenous. While I suppose that's possible, Kennedy himself didn't treat the constitution with the regard he has lately as recently as five or ten years ago. I don't buy that he was fooling everybody before his appointment and continued for 10 or 15 years afterward.

I think that a conservative, entrepreneurial, liberty-defending approach to life can't naturally endure once you've been given a life-tenured appointment at the pinnacle of your field. There are different paths to success in any field, but one such path as a lawyer is a commitment to ideas, intellectual rigor, principle-centeredness. If you're far along that path, you risk your prosperity if you ease up on any of those things. (Another path is grants. Lots of grants.)

Once you've reached the summit of your profession, as a relatively young man or woman, you no longer need to keep the pedal to the metal. It's foreseeable -- I would argue, observable -- that men who come to the court as fairly "reliable" conservatives might be seduced by their own power. As a lawyer or judge making your way up your career ladder, you can't write something that changes the country. Once you have that power, and you have no reasonable chance of ever losing it -- let's face it, men are generally quite lazy.

It's sort of like the guy that plays basketball at the Y, works out at the gym, buys sharp clothes, treats women with kindness and generosity, uses the salad fork, and lays off the beer, then gets married, and stops doing all that stuff. Except with almost no chance she'll throw you out on your ass. It's a seductive and dangerous situation.

I don't mean to elevate conservative justices who stay that way, by the way. Some of them, Mr. Justice Scalia comes to mind, are on a mission to change things themselves, but theirs is a harder row to hoe. To them, they haven't reached the summit; they're still climbing. That sharpens the instincts that made them attractive nominees in the first place, instead of dulling them.

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