article

04.11.10

Supreme Surprises

As the GOP girds for battle over Obama’s Supreme Court pick, they should remember their history. Gerald L. Shargel on why ideological labels are useless in predicting a justice’s performance.

Despite what The New York Times described as Republican reluctance to be portrayed as "knee-jerk obstructionists" in the upcoming confirmation hearings, members of the Judiciary Committee are already rattling sabers. On Meet the Press Sunday, Senator Jeff Sessions (R-AL) refused to say whether anyone on President Obama's short list was qualified to fill the Stevens vacancy. Pressed further, the senator would not rule out a filibuster.

Make no mistake about it. The Republican senators, as midterm elections draw near, are battle-worn and battle-ready. If nothing else, ghosts of confirmations past and the arms-folded resistance to the health-care bill will have Republicans resorting to type. While the labels don’t fit any of the short-listed nominees, cries of "too liberal" or "too active" are sure to surface. After all, if Republicans can call Justice Sotomayor a racist, nothing is out of bounds and reality is irrelevant.

Justice Scalia, the voice of intellectual conservatism, is now widely regarded (only half-jokingly) as the best friend of criminal defendants since William O. Douglas.

Benjamin Sarlin: Obamacare and the Fight for Stevens’ Seat

Adam Winkler: The Real Void Stevens Leaves
But history teaches that labels attached to nominees, even after confirmation, are not indelible. The Warren Court practically rewrote the Bill of Rights in favor of criminal defendants, surprising no one more than President Eisenhower—who appointed Warren as chief justice and who was later quoted as saying that the appointment was "the biggest damned fool mistake I ever made." In 1970, President Nixon appointed Harry Blackmun to the court expecting a conservative approach to constitutional interpretation; again, the label faded, with Blackmun joining the liberal side of the court. President George H.W. Bush had the same experience, to a more limited extent, with Justice Souter. And more to the present point, President Ford suffered what was commonly perceived as an ideological shift by the soon-to-retire Justice Stevens.

A surprising performance by a Supreme Court justice may not always be due to a change in ideology but rather a more strict application of that ideology. Justice Scalia, the voice of intellectual conservatism, is now widely regarded (only half-jokingly) as the best friend of criminal defendants since William O. Douglas. It was Scalia who wrote the majority opinions in Crawford v. Washington and Melendez-Diaz v. Massachusetts, cases that strictly construed the constitutional guarantee of a defendant's right to confront the witnesses against him, extinguishing shortcuts that prosecutors had enjoyed for decades. Justice Scalia again wrote the majority opinion in a landmark decision, Blakely v. Washington, a case that ultimately rang a constitutionally based death-knell to the mandatory federal sentencing guidelines. Scalia's philosophy of strict construction and literal interpretation have resulted in a number of other defendant-friendly opinions.

As the Senate approaches the confirmation process, Democrats and Republicans alike should recognize that the selection of a Supreme Court justice is far more nuanced than simply reading labels. A justice, as with all Article III judges, is appointed for life. Integrity and intellectual honesty are the best attributes that either party can hope for.

Gerald L. Shargel, a member of the New York Bar since 1969, has handled numerous high-profile cases at both the trial and appellate level. Mr. Shargel, a practitioner-in-residence at Brooklyn Law School, recently authored a law review article published in the Fordham Law Review, "Federal Evidence Rule 608(b): Gateway to the Minefield of Witness Preparation."