Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Gabriel Maliha
Gabriel Maliha is a senior at the University of Pennsylvania studying criminology.
The recent nomination of Judge Neil Gorsuch, of the U.S. Court of Appeals for the 10th Circuit, to the Supreme Court touched upon the usual debate about the predictability of a nominee’s judicial philosophy and ideological leanings. It is hoped that his writings, his record as a judge, and his Senate confirmation hearings will provide some clue as to his votes on potential issues that will come before the Court. 
Article III, Section one of the U.S. Constitution states: “The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” and “The judges, both of the Supreme Court and inferior Courts, shall hold their offices during good behavior.” The Constitution is silent on the qualifications of justices. There is no age, legal experience, or citizenship requirement. However, all those who have been nominated or served have been lawyers. The framers have clearly understood “good behavior” to be a lifetime appointment meant to preserve the independence of the judiciary against encroachment by the other branches. The “good behavior” standard is considered to be lower than “high crimes and misdemeanors.” Still, only fifteen federal judges have been impeached (none from the the Supreme Court) and eight convicted by the Senate in the history of the republic. 
Presidents, conservative and liberal, have complained about disappointment in justices that they have appointed. Salmon P. Chase voted against Abraham Lincoln in striking down the legislation financing the Civil War even though Chase was appointed specifically to uphold it. Theodore Roosevelt appointed Oliver Wendell Holmes, who voted against him in the railroad case of United States v. Northern Securities. Felix Frankfurter disappointed Franklin Roosevelt, Earl Warren and William Brannon disappointed Eisenhower, and Tom Clark disappointed Truman. In the modern era, Harry Blackmun and Lewis Powell - appointed by Nixon - did not toe the conservative line, John Paul Stevens disappointed Ford, David Souter totally surprised George H. W. Bush, and Sandra Day O’Connor, Anthony Kennedy, and Chief Justice Roberts have not lived up to the complete expectations of the presidents who appointed them. [3,4,5]
Why is it difficult to predict future decisions of Supreme Court nominees? Looking at the judicial (in the case of sitting or former judges) records of the nominee cannot answer all the questions. Lower court judges are bound by Supreme Court precedents and they may rule on a specific case in accordance with precedent and not in accordance with their independent jurisprudence. However, it is instructive when a lower Court judge pushes the envelope to test a Supreme Court precedent or when the original opinion of the judge is overturned by the Supreme Court. In the case of Judge Gorsuch, he has criticized the Chevron Doctrine, which states that courts should defer to reasonable federal agency interpretations of the laws they administer, established in the 1984 Supreme Court decision of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 
Can Senate hearings provide some predictability in terms of future decision-making by the nominee? Usually, no. Since the 1987 defeat of Judge Robert Bork, President’s Reagan appointee, by a liberal Senate on what is widely considered to be ideological and not qualification grounds, Presidents and their nominees have become quite coy in their responses during Senate hearings.  Justice Ruth Bader Ginsburg famously coined the “No hints, no forecasts, no previews” in her hearings; Antonin Scalia would not even answer questions about Marbury v. Madison, the decision that established judicial review; and Chief Justice Roberts coined the platitude: “ Judges are like umpires, calling balls and strikes, but not pitching or batting.”
There are other reasons that some nominees cannot be predicted. Judges are human and they do not always behave in an expected way. They usually start quite loyal to the philosophy of the president who appointed them, but they evolve in office. As they confront specific issues and deliberate with their colleagues and their clerks, they may simply reject ideological constraints and “do the right thing” as they perceive it. Further, they may be confronted by new issues that were not even on their radar when they were appointed, and those cases are not necessarily amenable to a specific conservative or liberal label.
Part of our national obsession with predicting the thinking of judicial nominees is that the Supreme Court has expanded its power tremendously over the years. So, Presidents and the body politic believe that their only realistic check on the Court is through the appointment of like-minded ideologues. If the Supreme Court, through exercise of judicial restraint, restores itself to its status as a last resort narrow judicial reviewer, the political ideology of the nominee would become less important. The framers understood the importance of an independent, non-political judicial branch and they attempted to bequeath one to us. In an ideal world, Presidents would nominate competent and impartial justices who are willing to apply the law and constitution as written and the Senate would provide its advice and consent based on those qualities alone.
 Wermiel, Stephen. “SCOTUS for law students: predicting Supreme Court Justices.” SCOTUSBLOG (Feb. 16, 2017). http://www.scotusblog.com/2017/02/scotus-law-students-predicting-supreme-court-Justices/
 Dorsen, Norman. “The selection of U.S. Supreme Court justices.” The American Journal of Comparative Law, Vol. 4, No. 4, 2006. http://doi.org/10.1093/icon/mol028.
 Lazarus, Ed. “Four enduring myths about Supreme Court nominees.” TIME (May 26, 2009).
 Purdum, Todd. “Presidents, picking justices, can have backfires.” The New York Times (July 5, 2005).
 Uley, G. “Many Supreme Court Justices have disappointed the presidents who approved them.” NBC Nightly News (July 21, 1990). http://archives.nbclearn.com/portal/site/k-12/browse/?cuecard=3739
 “Presidents sometimes regret Justices they appoint.” USATODAY (July 4, 2005).
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