Retired Justice Anthony Kennedy administers the judicial oath to Judge Brett M. Kavanaugh in the Justices’ Conference Room, Supreme Court Building. Ashley Kavanaugh holds the Bible. (Photo: Fred Schilling, Collection of the Supreme Court of the United States)
As some presidents can attest, U.S. Supreme Court justices are more likely to change their judicial philosophies once appointed than any other nominee to the federal court system. Most recently Justice David Souter, the pick of President George H.W. Bush, was supposed to be a win for conservatism, but as time went by, he aligned himself more and more closely with the left. President Gerald Ford on and off lamented his appointing antitrust expert Justice John Paul Stevens to the court. The late great U.S. Court of Appeals for the Third Circuit Judge Arlin Adams was his alternative choice. President Dwight D. Eisenhower equally lamented his appointment of Chief Justice Earl Warren, saying it was “the biggest damn fool mistake I ever made.” President Harry S. Truman said that Justice Tom Clark was not “a bad man,” but “just that he’s such a dumb son of a bitch.”
Whether a judge is considered an originalist or a textualist, whether he or she claims to adhere to stare decisis or traipses over it like Bambi through a meadow, the president, the Senate and the public rely upon past conduct, judicial decisions, writings, speeches and testimony to try to calculate with as much precision as possible how a judge will behave and decide cases once elevated. Justice Brett Kavanaugh is no exception as the latest appointee to this nation’s highest court.
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