July 2, 2012

Chief Justice John G. Roberts Jr.’s decision to side with the court’s liberal bloc and uphold Obamacare raises an important question for conservatives: Why are Republicans so awful at picking Supreme Court justices? Democrats have been virtually flawless in appointing reliable liberals to the court. Yet Republicans, more often than not, appoint justices who vote with the other side on critical decisions.

Compare the records over the past three decades. Democrats have appointed four justices — Ruth Bader Ginsburg, Stephen G. Breyer, Elena Kagan and Sonia Sotomayor. All have been consistent liberals on the bench. Republicans, by contrast, have picked seven justices. Of Ronald Reagan’s three appointees (Sandra Day O’Connor, Antonin Scalia and Anthony M. Kennedy), only Scalia has been a consistent conservative. George H.W. Bush appointed one solid conservative (Clarence Thomas) and one disastrous liberal (David Souter). With George W. Bush’s appointments of Samuel A. Alito Jr. and Roberts, conservatives thought they finally had broken the mold and put two rock-ribbed conservatives on the bench — until last week, that is, when Roberts broke with the conservatives and cast the deciding vote to uphold the largest expansion of federal power in decades.  

So Democrats are four-for-four — a perfect record. Republicans are not even batting .500.

Why is the Democratic record so consistent while the Republican record is so mixed? For one thing, the whole legal and political culture pushes the court to the left. Conservatives are pariahs if they vote against the left on certain issues. But if they cross over to vote with the left, they are hailed as statesmen. There is no penalty for voting left, but there is for voting right.

Another factor is that liberal Supreme Court nominees can tell you precisely how they stand on key issues and still get confirmed. In her 1993 confirmation hearings, Ginsburg declared the right to abortion “central to a woman’s life, to her dignity” and was confirmed 96 to 3. Breyer declared abortion a “basic right” and was confirmed 87 to 9. Imagine if a conservative nominee said the opposite? His or her confirmation battle would be a nuclear war.

Liberal nominees can simply affirm liberal positions, while conservatives must speak cryptically in terms of their judicial philosophy. And as we have just seen, those philosophical statements do not necessarily indicate how they will vote on the bench. During his confirmation hearings, Roberts famously compared the role of a judge to that of a baseball umpire whose job “is to call balls and strikes.” This was taken as a promise that, as Bush put it, “he’s not going to legislate from the bench.”

But legislate from the bench is exactly what Roberts did: The law’s proponents consistently rejected the notion that the individual mandate was a tax. But Roberts effectively redrafted the statute, making the mandate a tax in order to declare it constitutional. As Justices Scalia, Kennedy, Thomas and Alito wrote in their dissent, “To say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.” This, they said, “carries verbal wizardry too far, deep into the forbidden land of the sophists.”

That is the kind of sophistry we expect from liberals. The left sees the law as a tool of social justice — so they start with the desired outcome and then come up with legal reasoning to justify it. That is what Roberts did: He decided he wanted to uphold Obamacare and rewrote the statute to fit that outcome. 

There is speculation in conservative legal circles that Roberts had intended to strike down Obamacare but flipped his position at the last minute. We don’t know if he was suddenly convinced by his liberal colleagues or simply had a failure of nerve. But the challenge for conservatives is clear: We need jurists who have not only a philosophy of judicial restraint but the intestinal fortitude not to be swayed by pressure from the New York Times, the Georgetown cocktail circuit and the legal academy. 

Roberts’s defenders point to his many other conservative decisions and argue that he is not another Souter or even another Anthony Kennedy. That may be true. But is that really the standard we want for a Supreme Court justice — they are not another Souter or Kennedy? Shouldn’t conservatives expect Republican presidents to do better and appoint another Scalia, Thomas or Alito? That shouldn’t be too much to ask.

Marc A. Thiessen, a fellow with the American Enterprise Institute, writes a weekly online column for The Post.