Chapter Eight The Reliability of Judicial Appointments in the United States During the Presidencies of Ronald Reagan and George H. W. Bush Murray Cranston Before I commence I would like to forewarn such an eminent audience that I do not have a law degree and the manner in which I approach this topic is merely as a humble, unknown political scientist in a field casually referred to as American political jurisprudence. I have always been very curious about the vast power of judges of the United States Supreme Court and, in particular, the fact that they are appointed for life. To the American president with the power of making these rare and significant nominations, in political terms, this simply represents a very stark gamble. For me, the fundamental question has always been, from a crudely political perspective, how can the President of the United States be absolutely sure that the judicial nominee he has entrusted for life to reflect his ideological values on the Court be as reliable as he would expect? I use the term “reliable” in this context in the same way as the term “concordance” is applied in the existing literature regarding this subject matter. Concordance is used by Jeffrey Segal and others to explain the degree to which a judicial nominee adheres to the ideological and philosophical preferences of the nominating President. It is simply defined as, “the relative agreement between judicial behaviour and presidential policy preferences.”1 Even today it is remarkable to think that my own personal hero, Justice Clarence Thomas, will celebrate his twentieth anniversary on the Supreme Court in October 2011 – yet he will only be 63 years old; based on recent departures he still has a twenty-year future determining the course of that country’s political culture and legal history. Imagine a situation in Australia, for instance, where Justice Ian Callinan would still be a delightful part of the High Court today having been appointed way back in 1998; or where Justice Dyson Heydon would continue to grow as the Court’s intellectual force during the next ten years instead of having his vocation so cruelly interrupted in the next eighteen months by a replacement from the Gillard-Brown government. In looking more deeply at this concept of judicial reliability, I would like to do so in three parts: First, to recount the many classic instances of spectacular lack of reliability American Presidents have faced in the past with their choice of judicial nominee. Second, to share with you my own direct observations regarding the judicial reliability of a specific cohort of judges on the Supreme Court and the United States Court of Appeals for the Fourth Circuit. Finally, I would like to provide three reasons why it came about that certain judicial nominees in the example I use were not completely reliable choices. A short history of judicial reliability in the United States The opportunity to appoint men to lifetime positions throughout the appellate levels of the American federal judiciary is one of the most significant and enduring acts the President of that country can make. However, it can also be a perilous undertaking if that President wants to be assured of success. It is broadly accepted that the American President possesses a deliberate political interest in the type of person he nominates to the courts. As John Maltese observes, “. (a) president’s Supreme Court appointments are among his most important (and most contentious). As a tool for influencing 68 judicial policy making, they are an important part of presidential power. Symbolically, they are a test of presidential strength.”2 Harry Stumpf makes clear, “…the president, through his Supreme Court appointments, enjoys a unique opportunity to influence the course of judicial policy making for the nation far beyond his term of office, and few chief executives have been unmindful or careless in their use of this power.”3 Finally, Donald Songer and others have demonstrated that a President’s interest in judicial nominations can vary according to the importance placed on specific criteria. They declare: . an administration can undertake a deliberative effort to appoint judges who will advance, through their decisions, the policy agenda of the president. Other administrations may utilise judicial appointments for partisan goals. In this respect, presidents view judicial appointments as vehicles for advancing their own political base or the stature of their parties. Some presidents, on occasion, use judicial appointments as opportunities for rewarding close friends who have been loyal throughout their political career. Selection processes also vary by administration in terms of the personal involvement of the president and the attention given to input by home state senators and others interested in the staffing of the bench.4 The desire of Presidents to take a personal interest in the philosophical outlook of their judicial nominees has long been a part of American presidential history. John Maltese records the significance that was placed on selecting the “right” judicial nominees under President Thomas Jefferson. He states: After an unsuccessful attempt to remove Federalist Supreme Court justices through impeachment, the Democratic-Republicans slowly replaced justices through natural attrition. But their first opportunity did not come until 1804. Thomas Jefferson appointed three justices during his eight years in office, but appointing the justice who would give the Democratic-Republicans a majority on the Court fell to Jefferson’s successor, James Madison. ‘The death of (Justice William) Cushing is opportune,’ Jefferson wrote in a letter to Attorney General Caesar Rodney, ‘as it gives an opening for at last getting a Republican majority on the supreme bench . I trust the occasion will not be lost.’5 The former Chairman of the Senate Judiciary Committee, Senator Orrin Hatch of Utah, has acknowledged that there is a risk in attempting to select judicial nominees who could meet the expectations of their nominating President throughout their entire time on the bench. The Senator concluded: . trying to judge a person’s political views is a less than accurate science. Judicial appointments are for life. You may think you know what a person believes today, but there is no guarantee that these opinions will remain intact over the course of a career of perhaps several decades. David Souter, John Paul Stevens and Earl Warren, to name a few, all defied expectations.6 Here it is worth pointing out further examples of where American Presidents were convinced they were selecting “safe” and “known” candidates to the nation’s highest court only to be gravely disappointed as their nominees adopted an altogether different legal methodology once securely confirmed on the bench. John Maltese recounted: . history books are full of pithy quotes of presidents spurned by their judicial nominees. Betrayed by Justice Tom Clark’s vote on important cases, Harry Truman called Clark’s 69 appointment his ‘biggest mistake.’ Truman had first named Clark as his attorney general and then elevated him to the Supreme Court. ‘I don’t know what got into me,’ Truman later said. ‘He was no damn good as Attorney General, and on the Supreme Court . it doesn’t seem possible, but he’s even worse. He hasn’t made one right decision that I can think of . .’7 Well, Joseph Menez has also provided a wonderful summary of disappointed Presidents and their Supreme Court legacies: Justice Blackmun . despite viewing himself as a centrist has travelled in thirteen years from the conservative to the liberal wing. Stanley Reed started out as a liberal New Dealer, became a ‘swing’ man and ultimately a conservative; and the Chief Justice Charles E. Hughes travelled the same road but in the opposite direction. A liberal president, Woodrow Wilson appointed McReynolds who became a reactionary member of the Four Horsemen . Thomas Jefferson urged President James Madison to appoint Joseph Story of Massachusetts, an intellectual great, to ‘neutralise’ Chief Justice John Marshall, only to see Story ‘captured’.8 Finally, Hodding Carter provided an interesting example as to how such candidates can fall well below presidential expectations – he uses the famous liberal Justice Hugo Black as a specific example: Hugo Black took the judicial oath under a far more ominous cloud, the revelation that he had once been a member of the Ku Klux Klan, and had even received an award from that organisation. Yet Black persevered to become a great champion of civil rights and civil liberties and, in the estimates of some authorities, one of the great Justices in the Court’s history.9 An empirical example I turn now to the second part of our exploration into the reliability of judicial nominees. Over some years I examined a core set of 50 criminal justice cases from the United States Supreme Court and a core set of 227 such cases from the United States Court of Appeals for the Fourth Circuit. As these core cases were heard by more than one judge a gross total of 648 criminal justice cases were examined. Of these, 242 cases were in the Supreme Court and 406 were decided in the Fourth Circuit. The timeframe for this analysis was between 1995 and 1999. There were five Reagan and Bush appointed judges from the Supreme Court in this dataset; and six Reagan and Bush appointed judges from the Fourth Circuit. Of the thirteen circuit courts of appeal in the American federal judiciary, the Fourth Circuit was selected because back then it had a widely acknowledged reputation as the country’s leading conservative appellate court, particularly regarding criminal justice cases. Because of this court’s willingness to adopt a strongly conservative legal methodology towards criminal justice, the Fourth Circuit provided a model of concordance when it came to the policy preferences of Presidents Reagan and Bush.