How to Avoid Another Souter. . . or Stevens. . . or O’Connor. . . or Kennedy

We can’t undo the past, but we can avoid repeating its mistakes. Here’s how.

After the announcement of Justice Anthony Kennedy’s retirement, President Trump declared that the process of selecting the next Supreme Court justice would begin in earnest.  

For Republican presidents, the history of the results of that process has not been a happy one. Granted, there have been bright stars in the GOP’s nomination sky, such as Justices Thomas, Scalia, and Gorsuch. But there have also been disasters. David Souter was placed on the Court instead of Edith Jones, John Paul Stevens instead of J. Clifford Wallace or Robert Bork, and Sandra Day O’Connor instead of Mary Ann Glendon. A process that yields such mixed results is broken. 

But there are ways we can do better—ways to more accurately assess potential nominees to avoid the mistakes of the past. A survey of that past reveals five principles that should be applied now in determining whom to nominate for the seat Justice Kennedy will vacate at the end of this month. 

1. Trust, but Verify

It’s hard to know what’s in the heart of hearts of a potential nominee. So the vetting process, like a typical job search, has tended to lean heavily on personal endorsements. For example, during the Bush administration, White House chief of staff John Sununu personally vouched for David Souter, whom he knew. And Ed Meese went to bat in the Reagan administration for Anthony Kennedy, whom he also knew. Both of those picks were massive disappointments for the right.  

We should not repeat the mistakes of the past. Any personal endorsement from anyone, no matter who they are, must be checked against more objective sources. As President Reagan used to say in a different context, “Trust, but verify.” We need less trust and more verification. 

But how does one verify? By the hard, slow process of slogging through everything potential nominees have ever written, especially judicial opinions. And this will require, at times, diving into the briefing that was before the judge to better understand what that judge was doing in his or her opinion. Further, since we live in an era of big data, other methods of assessing judicial behavior can be brought to bear. For example, a recent study sought to rank the various people on Trump’s list of potential nominees on their degree of “Scalia-ness,” looking at things like how often they engaged in or promoted originalism. Such analysis is a welcome objective check on personal endorsements. In short, let’s follow the data, qualitative and quantitative. 

2. Legal Experience is Not Created Equal

While we should follow the data, not all data are created equal. That’s because not all legal experience provides equally clear insight into how a person would act if put in a position where the only check on them was their own internal compass as to the proper role of a judge. As I have written before at Public Discourse, previous legal experience where one has a strong external check or is externally hemmed in provides a muddier signal as to how one would behave on the Supreme Court where those checks and hems are largely gone.  

Thus, lawyers, who are beholden to clients and precedent, and federal court of appeals judges, who are hemmed in by precedent both from the Supreme Court and from their own circuits, are less able to show their true colors. This makes them a huge question mark, and nominating a question mark is risky business. By contrast, those who take legal positions where others are less likely to look over their shoulder, such as law professors or state supreme court justices (when ruling on state matters), are more free to be who they really are, and who they likely would be if elevated to the highest court in the land. 

3. Consistent Jurisprudential Processes

Rather than being the hobglobin of little minds, certain types of consistency are the hallmark of judges who prefer process over outcomes. And it is a process-oriented rather than a results-oriented judge who is the only legitimate kind of federal judge in our constitutional system. 

For instance, do potential nominees consistently use textualist tools, such as dictionaries, or do they pick and choose when to rely on a dictionary and when to ignore it in a way that reflects the lack of a principled approach to statutory interpretation? Similarly, when faced with dueling dictionary definitions from parties, do they just ignore or unpersuasively explain away the definition that doesn’t lead them to their preferred outcome? 

Likewise, how consistently do potential nominees return to first principles, turning to what the Constitution originally meant? (Of course, federal courts of appeals judges have a harder time doing this because of precedent, though they can at least nod to originalism even if they can’t use it in a given case.) And does a judge use a consistent type of originalist methodology, such as original public meaning or original intent? Or is he or she all over the map, perhaps evidencing a results-oriented approach? Though sometimes a lack of evidence from one method requires turning to another, any originalism is better than none. 

Finally, a judge’s standing jurisprudence tells a lot about his or her views on the role of a judge, and thus how he or she would act if placed on the Supreme Court. For instance, someone consistently soft on standing—a standing dove, so to speak—would not appear to view the Article III judicial power as very limited; certainly not as cabined as, say, Justice Scalia or Justice Thomas has viewed it. And a judge who is sometimes a standing dove and sometimes a standing hawk is probably dialing his standing strictness up or down based on who the parties are and which outcome he wants to reach.  

Perhaps some will say they don’t care how a justice reaches decisions as long as he or she consistently reaches a conservative or libertarian outcome. But there are problems with that type of judging, besides the fact that the Constitution doesn’t authorize it: such a style of judging leads to massive distortions in the law, undermining the rule of law. We have seen it by liberal justices for over a half-century. We shouldn’t nominate those who will repeat those judicial sins. The law is more than just outcomes, it is also the analysis behind those outcomes—the doctrine—and a proper judge focuses on the reasoning. 

What is more, nominating a results-oriented judge rather than a process-oriented judge requires a completely different type of vetting inquiry. To be assured of getting a process-oriented justice, one has to look at how potential nominees have gone about the process of judging (or reaching legal conclusions). And if one finds someone with a solid and committed originalist and textualist process, the outcomes will largely take care of themselves, since most of the time when the Constitution or statutes are being bent to reach an outcome, it is in a more liberal direction. But to be assured of getting a results-oriented judge—a judge who acts more like a member of Congress than the judiciary—one has to know his or her policy preferences on every issue, or at least on the issues one deems most important. And that is nearly impossible to do, particularly with those who have already been judges. 

4. Don’t Lean Too Heavily on the Presidential Interview and Improve Other Interviews

The interview plays a large role in the final selection of a Supreme Court nominee. Perhaps that is somewhat unavoidable since the ultimate selector, the president, often isn’t an expert in discerning the nuances of judicial behavior and legal doctrine. It’s kind of like the CEO of a company, who is an expert in business, being tasked with making the hiring decision of a structural engineer. The CEO’s lack of understanding of structural engineering forces him to focus on other aspects of the candidate gleaned from the interview, such as personality or perceived intelligence. That can lead to bad hiring decisions. Numerous social science studies back this up: making hiring decisions based largely on the strength of the interview more often than not leads to giving the wrong person the job. So, the nomination decision should mostly be made from data gathered outside of a traditional interview, with perhaps such an interview acting just to confirm rather than to decide. 

That being said, interviews with experts, such as attorneys in the White House counsel’s office, who understand the nuances of the judicial process and the law, can be beneficial. But only if they take a certain form. Such interviews should not so much be about asking potential nominees their views on various issues or doctrines. After all, these are lawyers we’re dealing with—they can say what people want to hear.  

Instead, these interviews could be structured to provide insight into a person’s legal instincts without his or her being able to prepare. For instance, a person brought in for this type of interview should be given some decision that is not his or her own and not well known (definitely anonymous, perhaps constructed by the interviewers) and some time to analyze before being grilled on it. The opinion should be subtly but not overtly bad, with various landmines from the perspective of judicial conservatives. This will help enable the interviewers to see how a nominee thinks about the law on the spot, without the ability to prepare canned answers.  

5. Look for Moxie

Finally, you want a nominee with moxie. There will be immense pressure from the liberal-leaning legal profession, social elites, Beltway elites, the media, and some colleagues on the Court to move left. And the sad reality is that political scientists have found that most justices do drift left once on the Court, unable to resist this pressure. We don’t need another justice who wakes up in the morning caring what the New York Timesor his group of cocktail “friends” in Georgetown, or the legal academy—thinks of him. This country—this republic—needs a justice who can ignore those distractions and criticisms or flattery and focus solely on what the law requires. 

Evidence of such moxie is difficult, but not impossible, to find. For example, if they have already had judicial experience (which all but one of the twenty-five of those on the President’s list have), are they willing to stick their neck out and buck their colleagues? What is more, are they willing to make a full-throated defense of their minority views, grounded in originalist or textualist principles? And how often do they do that? For non-judicial experience, whether writing law review articles and books or taking public positions, is a potential nominee willing to take principled, unpopular positions consistent with the original meaning of the Constitution or statutes? And by unpopular I don’t just always mean disliked by the left. Sometimes a principled stand in favor of the Constitution can draw the ire of the right as well. And it arguably takes even more courage to withstand flak from one’s friends than from one’s opponents.  

If someone has a track record of displaying this kind of moxie, then he or she is likely to continue to do so if put on the Supreme Court. If not, then he or she is unlikely to suddenly find the resolve to stand stiff in the winds of opposition when those winds reach gale force speeds.  

The right’s history of Supreme Court nominations is a sad song of what might have been. Imagine if during the 1980s and 1990s we had had a Supreme Court with Justices J. Clifford Wallace, Mary Ann Glendon, Robert Bork, Antonin Scalia, Edith Jones, and Clarence Thomas. It would be a different world—and a stronger republic.  

We can’t undo the past, but we can avoid repeating its mistakes. Let’s get this nomination right.  

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