Tuesday, October 11, 2005

Why Right Judges Go Wrong: a note on Aristotle and conversion

One of the most famous thing Aristotle ever wrote is this : Man is by nature a political animal (Politics I.2). What he meant by this is that humans aren't sharks; they do not by nature swim alone. Rather they live and move and work in communities.

The sociologist of religion Rodney Stark applied this basic insight to the question of how humans change religion. His field studies of individuals going through conversion indicated this: conversions take place when personal attachments to members of the new group exceed personal attachments to members of the old group.

The corollary to this is that religious conversions frequently follow geographical moves. When people move to a new city, they are forced to tear up their old social networks and build new ones. This transition process creates a new network of friends and social relationships--and also creates opportunities for religious conversion. So the move to a new city is one of the leading predictors of religious conversion.

It's constructive to apply this basic insight to the problem of Supreme Court justices. Republican presidents have done a very poor job of picking justices for the Supreme Court. And many GOP activists want to know what they need to do prevent conservative Supreme Court appointees from sliding to the left.

Here's the basic evidence, and it's quite powerful. When GOP presidents have chosen Supreme Court justices from within the DC area, the conservative justices have stayed conservative. When GOP presidents have gone outside DC, they have never located a single conservative who came to DC and stayed that way.

Bush 41
Thomas--DC Circuit: Conservative
Souter--NH SC &1st Circuit/Boston: Con shift Liberal

Reagan
Kennedy--9th Circuit/San Francisco: Moderate shift Liberal?
Scalia--DC Circuit: Conservative
O’Connor--Arizona Court of Appeals: Conservative shift Moderate

Nixon
Rehnquist--Dept. of Justice: Conservative
Powell--Virginia lawyer: Moderate
Blackmun--8th Circuit/St Louis: Con shift Liberal
Burger--DC Circuit: Conservative


Eisenhower
Stewart--6th Circuit/Cincinnati: Moderate
Whittaker--8th Circuit/St Louis: Moderate/Conservative
Brennan, Jr--NJ Supreme Court: Liberal
Harlan--2nd Circuit/New York: Moderate
Warren--Gov. of California: Liberal

The evidence here is pretty consistent. The clear conservatives were all promoted from within the DC area: Thomas and Scalia were both from the DC circuit; Rehnquist was from the Nixon Justice Department. The disasters came from the out-of-towners: Blackmun voted conservative his first year on the bench, then rapidly moved left; Souter voted with Scalia his first year, and then headed left. Sandra Day O'Connor, despite close pre-existing ties to Rehnquist, started conservative to moderate and moved somewhat left during her tenure. Although opinions will differ on Burger, I've classified him as a conservative, which seems to be basically correct despite his vote for Roe.

There seems also to be some risk of promoting from the state court system: Eisenhower's moderates all came from the federal system; his state appointees (Warren and Brennan) proved to be the liberal surprises.

Of course, it's essential to make sure the pick is conservative in the first place. Otherwise, the logic sketched above doesn't hold. But again, a president in DC is likely to have better information on local candidates than those outside the Beltway.

Nonetheless, the lesson here is: don't give a lifetime appointment to a candidate for conversion. Any nominee who has to find a new house, a new church and a new job is a candidate for conversion. The safe rule for GOP presidents is to promote strictly from within the DC geographical area.

This gives us some reason to hope that neither Roberts nor Miers will drift much from where they are now. Roberts has been in the DC area for years; although there are no guarantees where human beings are concerned, if he hasn't been corrupted by the DC cocktail circuit yet, it's not likely now. Miers similarly has been in DC for five years; she's not a good candidate for going liberal.

This should also serve as a key criterion for the next SCOTUS picks. Conservative shortlists should NOT include DC outsiders as a basic rule. The partial exception to this might be academics: academia is so strongly liberal that a tenured professor who has resisted liberal pressure in the university culture is probably immune from the pressures of DC as well.

PS:
Carol Platt Liebau reaches a similar conclusion from another perspective.

3 Comments:

At Tuesday, 18 October, 2005, Blogger stealthlawprof said...

GH -- I came over from confirmthem to see this post. It is very interesting. I must admit, however, it reminds me of the comment from one of my college teachers -- "The water in our local river rises every spring. Hot dog sales at Anaheim Stadium rise every spring. Therefore, rising water in our local river causes increased hot dog sales at Anaheim Stadium." You have established a very interesting coincidence. But it is still merely a coincidence.

While I do not have a full explanation for all of the moves, I think some can be explained, as you imply at least in part, by personalities on the Court. Blackmun was taken under the wing by Bill Brennan. O'Connor decided that she wanted the accolades given to Lewis Powell when he retired, so she became her own perception of Lewis Powell.

I don't know that I have the historical perspective to figure out Kennedy and Souter yet, but I think a factor certainly is that Scalia and Thomas are not natural mentors. Roberts might have the personality to become one, but it is a bit early in his tenure to place that responsibility on him.

This perspective leads me to want a very strong personality with a well developed constitutional thought process, which I think is not an apt description of Harriet Miers.

 
At Sunday, 30 October, 2005, Blogger GrenfellHunt said...

StealthLaw: thanks for your post. For a similar point of view, see this post over at ConfirmThem:

http://www.confirmthem.com/?p=1794#comment-66520

 
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