The lifetime appointments of federal judges is supposed to support their independence, and it seems to be so. I know that retiring justice Anthony Kennedy was appointed by Ronald Reagan, a conservative icon, yet he has become the "swing" vote on the Court.

My question is how common is it for justices to surprise court watchers by "switching teams", or just being more willing to go against preconceived notions about their judicial philosophy?

My bigger question is has this happened with liberal appointees, or has it only been conservative appointees that have surprised us?

I am asking partly because I don't have the time/am too lazy to do the research, but also I think it is an interesting discussion point. And, I thought at least one of our fine gentlemen on the forum might know offhand.

It is quite common, the bane of Presidents for generations.

Harry Truman figured his worst mistake was putting Tom Clark in the court. Eisenhower lamented two of his picks. Kennedy didn’t live long enough to fret his. Things are seldom ever perfect.

Mostly it is supposed conservatives coming to so-called liberal decisions.

In modern times - say since WWII, it is thought that Republican appointees stray more from conservative politics than do Democratic nominees.

Blackmun was a Nixon pick, but was generally more lefty.

Same with Warren, an Eisenhower pick, who swung the whole Court left in the '60s and '70s.

But White was a Kennedy pick, who turned out to be fairly conservative.

It is hard to tell how it will go. As JAllen said in the "pool" thread, every justice will eventually write an opinion or make a vote that is seen by her loyalists as undesirable

As a conservative, I want a justice who is more of a strict constructionist, adhering to the constitution wherever it takes him. I suspected that justices appointed by conservatives would be more likely to surprise those who appointed them, but I don't have the data to back that up. JALLEN, thank you for backing that up.

This stems from a conversation I was having with one of my sons, in which he said that he believes that no one is truly unbiased. My response was that I agree, but a good judge rules independently of that bias.

Sununu screwed us with Souter, Souter gave up his seat as fast as he could to Broncobama.

Dicks!

Said Ike ruefully on his retirement: Two of my worst mistakes are sitting up there on the Supreme Court.

The two were Warren, who, as California’s governor, had pushed to put Japanese-Americans in concentration camps in World War II, and William Brennan, the most radical justice to sit in over half a century.

Nixon came to office committed to rein in the court by naming “strict constructionists.” Yet three of the four justices he named would vote for Roe v. Wade in 1973. Harry Blackmun, whom Nixon rushed onto the bench after his Southern nominees Clement Haynsworth and G. Harrold Carswell were trashed and rejected, became the author of Roe.

Nixon’s fourth nominee, William Rehnquist, was his best, a brilliant jurist whom Reagan himself would elevate to chief justice.

Gerald Ford’s sole nominee, John Paul Stevens, confirmed 97-0 in the Senate, turned left soon after his confirmation to join Blackmun.

Reagan named Sandra Day O’Connor, the first woman, and Scalia.

But when his effort to elevate Judge Robert Bork failed, he turned to Anthony Kennedy of California, whose seat Trump is filling today.

Over 30 years, Kennedy’s vote proved decisive in 5-4 decisions to uphold Roe, to discover homosexuality as a constitutional right, and to raise same-sex unions to the legal level of traditional marriage.

George H.W. Bush’s first choice was David Souter, who also turned left to join the liberal bloc. Bush I got it right on his second try in 1991, naming the constitutionalist Clarence Thomas.

As for George W. Bush, he chose John Roberts as Chief Justice to succeed Rehnquist and then Sam Alito as associate justice.

Thus, of 15 justices Republican Presidents have named since World War II, five — Warren, Brennan, Blackmun, Stevens and Souter — became liberal activists. Kennedy and Sandra Day O’Connor, both Reagan choices, became swing justices and voted with the court’s liberals on critical social issues.

Democratic presidents have done far better by their constituents.

Of seven justices named by LBJ, Clinton and Obama, every one — Thurgood Marshall, Arthur Goldberg, Abe Fortas, Ruth Ginsburg, Stephen Breyer, Elena Kagan, Sonia Sotomayor — turned out to be predictably and consistently liberal.

Clearly, the advisers to George W. Bush and President Trump looked back at the successes and the failures of previous GOP presidents, and have done a far better job of vetting nominees. They reached outside for counsel.

It was Trump’s 2016 pledge to draw his nominees to the high court from a list of 20 judges and scholars supplied by the Federalist Society that reassured conservatives and helped him unite his party and get elected.

On the issue of judicial nominees and justices to the Supreme Court, Trump has kept his word.

And the next Supreme Court may one day be called the Trump Court.

https://www.zerohedge.com/news...egic-ally-about-fall

Many a Republican appointee has turned to the dark side. The power of the dark is seductive.

quote:

Originally posted by honestlou:
The lifetime appointments of federal judges is supposed to support their independence, and it seems to be so. I know that retiring justice Anthony Kennedy was appointed by Ronald Reagan, a conservative icon, yet he has become the "swing" vote on the Court.

My question is how common is it for justices to surprise court watchers by "switching teams", or just being more willing to go against preconceived notions about their judicial philosophy?

My bigger question is has this happened with liberal appointees, or has it only been conservative appointees that have surprised us?

I am asking partly because I don't have the time/am too lazy to do the research, but also I think it is an interesting discussion point. And, I thought at least one of our fine gentlemen on the forum might know offhand.

Kennedy being the 'swing' vote as a negative always shocks me to see.

Back in the Bush days, Renquist (sp?), Thomas, Scalia and Kennedy were the conservative bloc on the court. Sandra Day O'Connor was the swing vote on the court and she seemed to be legit in the middle.

O'Connor retired and was replaced with Alito who is to the right of Kennedy so naturally Kennedy became the swing vote.

Kennedy is still pretty dang conservative but I think people like him and Roberts understand the importance of 5-4 decisions and aren't concerned as much with just railroading the liberal position. If Kavanaugh gets confirmed, Roberts would be the next 'swing' vote even though he is solidly on the conservative side.

It's just whoever happens to be in between the 4 most liberal and 4 most conservative judges. It doesn't assure a middle of the road position on everything.

Think what you want about Kennedy but the court got CONSIDERABLY more conservative after O'Connor retired and assuming everything goes as planned, it will get even MORE conservative with Roberts as the swing vote regardless of what you think of him.

^^^ You know, I kinda wonder whether Roberts is really going to be the swing vote all that often. He seems to have a reputation for joining in some decisions written by liberal justices in an attempt to moderate the breadth and impact of the liberal element in the decision.

If there's a solid conservative majority, who can really be designated the consistent 'swing vote' anyway? I suppose one conservative justice could eventually develop just enough of a difference to get the title just because the justice is relatively or even marginally more likely to agree with the liberal justices than the others. What I think may be more likely, though, is that some conservative justices may develop reputations as 'swing votes' in certain areas of the law - like, say, Gorsuch when it comes to privacy.

quote:

Originally posted by Fenris:
Many a Republican appointee has turned to the dark side. The power of the dark is seductive.

I might point out that there just isn't a supportive environment for conservatives in Washington, D.C. To the extent the federal government permits it to function as a normal city, it's just one city in a string of messed-up liberal urban centers along the Atlantic coast. And yes, it fits right in between Baltimore and Richmond. If you want any kind of social life at all then you're kinda stuck with what's there.

quote:

Originally posted by Il Cattivo:
^^^ You know, I kinda wonder whether Roberts is really going to be the swing vote all that often. He seems to have a reputation for joining in some decisions written by liberal justices in an attempt to moderate the breadth and impact of the liberal element in the decision.

The Chief Justice votes last, and when with the majority he assigns which justice will write the opinion.

The term “swing vote” is a media invention.

In cases where the result is 5-4, all of the majority are swing votes, of course, but if one justice has a tendency to vote with the so-called conservatives sometimes, and with the so-called liberals sometimes that justice gets the label.

There are statistics about how often this justice and that justice are on the same side. Thomas and Alito probably are a high percentage of the time. Thomas and Ginsberg, not so much.

As far as opinion writing, the Chief assigns when he is in the majority, the senior justice in the majority assigns when the Chief is not.

Also, votes sometimes shift as opinions are drafted, circulated, revised.