The Souter FactorWhat makes tough conservative justices go soft? By Dahlia LithwickPosted Wednesday, Aug. 3, 2005 .. many links ..
The much-whispered hope of liberals and much-shouted anxiety of conservatives .. http://www.anncoulter.com/cgi-local/welcome.cgi .. is that John Roberts, once robed, will be sucked up into the mystical, nameless force that pulls Supreme Court justices leftward. The tendency of justices to "defect," or "evolve" (circle the word you prefer) to the left during their careers on the high court is legendary. Political guru Larry Sabato estimates that as many as a "quarter of confirmed nominees in the last half-century, end up evolving from conservative to moderate or liberal." The burning question about Roberts then is not, "What does he really believe?" so much as, "How long will he really believe it?"
In 2003, Dahlia Lithwick explained that the burden of being Justice Scalia means always knowing you're right—that is, never evolving. In a July discussion with Viet Dinh and Dahlia Lithwick, Cliff Sloan predicted that John Roberts could be more effective on the court than Scalia, simply because people like him. Lithwick's 2004 assessment of the Blackmun papers revealed the justices to be oddly human (and even susceptible to public opinion). In June, Emily Bazelon explored the Strange New Respect phenomenon that arises when justices wander left, and whether Chief Justice Rehnquist deserves it.
Clarence Thomas is said to have bragged: "I am not evolving" following his confirmation, and he's proved true to his word. But tales of other rock-ribbed Republicans listing leftward abound. Consider the twin disappointments of President Eisenhower's administration: William Brennan—who went on to become the moral and intellectual leader of the court's liberal faction, and Chief Justice Earl Warren—an appointment Eisenhower later characterized as "the biggest damn fool mistake I ever made." Consider Harry Blackmun—the Nixon appointee who went on to author Roe v. Wade, and Lewis Powell, savior of affirmative action, whom Nixon also appointed. Consider John Paul Stevens (a Ford appointee), Sandra Day O'Connor (a Reagan appointee), Anthony Kennedy (ditto), and David Souter (Bush I). All presented as predictable conservatives until they hit the bench. Yes, there are a few defections in the opposite direction: FDR appointee Felix Frankfurter and Kennedy appointee Byron "Whizzer" White became more conservative on the court. But no one really disputes that the trend is largely from the right to the left. The question is, why?
Half-baked theories about the drift to the left abound. Here they are, for Roberts' watchers to consider: .. continued at length .. http://www.slate.com/id/2123935
Also .. Why Republican judges drift to the left
Apr 14th 2010, 14:01 by Lexington
HE WAS appointed by a Republican president, but Justice John Paul Stevens ended up as the Supreme Court's liberal anchor. He insists that he didn't change; the court did. Well, the court did indeed shift to the right. But "[l]ike many of us, this extraordinarily intelligent, self-effacing gentleman, who will turn 90 on April 20, may be kidding himself a bit about his own consistency," argues Stuart Taylor of the National Journal. For example:
* He used to allude to Nazi Germany when condemning racial preferences. Now he supports them. * He voted to bring back the death penalty. Now he thinks it is unconstitutional. * He used to be relatively unsympathetic to criminal defendants. Now he is anything but.
Justin Driver makes a similar argument in the New Republic.
For some reason, Taylor observes, Republican appointees to the Supreme Court quite often shift to the left (Harry Blackmun, Sandra Day O'Connor, David Souter, Warren Burger, Lewis Powell), but "no Democratic-appointed justice has become substantially more conservative over time." He wonders why:
Blackmun and O'Connor as well as Stevens...clearly "evolved," as liberal journalists and academics have said approvingly. Their ideological drift has to some extent mirrored the direction of general public opinion, such as diminishing bias against gay people. But the public has never moved sharply to the left -- as has Stevens and as did O'Connor and Blackmun -- on abortion rights, racial preferences or church-state issues such as school prayer.
While many liberals see this trend as a case of acquiring wisdom on the job, conservative critics including Justices Clarence Thomas and Antonin Scalia have claimed that their more liberal Republican-appointed colleagues have been moved neither by wisdom, nor by legal principle, nor by general public opinion, but by the leftward march of the intellectual elite, especially in the media and academia.
While I would not dismiss the liberal view, the conservative critique seems more plausible. Indeed, it would be only human...for justices who arrive without settled ideological convictions to evolve in a liberal direction.
The justices' reputations are determined in large part by mostly liberal news reporters, commentators and law professors and by liberal feminist, civil rights and professional interest groups such as the American Bar Association. Newly appointed justices who vote conservative are often portrayed as uncompassionate right-wing ideologues. Those who move leftward win praise for enlightenment. ("I ain't evolving," the aggressively conservative Thomas has reportedly told clerks.) And the bright young law clerks -- the justices' closest professional collaborators -- tend to come from elite law schools where conservative professors are rare birds and general public opinion is widely seen as benighted.
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