The headline in The New York Times on March 16, 2016 is downright scary — “A Supreme Court with Merrick Garland Would Be the Most Liberal in Decades.” Not “Might Be” or “Could Be.” “Would Be” is based on an analysis of how Garland, President Barack Obama’s nominee to replace conservative icon Antonin Scalia, has voted during his 19 years as a judge on the United States Court of Appeals for the District of Columbia Circuit.
“We don’t yet know exactly how Mr. Garland would vote if he joined the court,” the article reports. “But scholars believe that he will be substantially more liberal than Justice Scalia was. According to a ranking of Supreme Court and appeals court judges, Mr. Garland is expected to be ideologically similar to Elena Kagan and Sonia Sotomayor, President Obama’s previous picks for the court.”
When you look at the ideological rankings of Supreme Court judges, it’s easy to see why Republicans in the U.S. Senate want the next president, preferably a Republican, to nominate Scalia’s replacement. The two Supreme Court judges that Obama has selected, Elena Kagan and Sonia Sotomayor, rank as among the most liberal judges who have served on the U.S. Supreme Court since 1937, according to the Martin-Quinn ideology scores.
University of Michigan political science professor Andrew D. Martin and University of California-Berkeley law professor Kevin Quinn have studied the voting record of every Supreme Court justice since 1937. The Martin-Quinn score chart in The New York Times article rates Kagan, Sotomayor, and the other two judges nominated by a Democratic president — Stephen Breyer and Ruth Bader Ginsburg — as between negative 2 and negative 3 on a scale that gives conservatives positive scores and liberals negative scores.
The same chart shows that Clarence Thomas is about a positive 3, Samuel Alito is about a positive 2, John Roberts is about a positive 1, and Anthony Kennedy is about even. Scalia’s conservative score was slightly below Alito’s. Replacing Scalia with Garland could be extremely damaging to the conservative cause and the nation.
“If his past record is predictive, and Mr. Garland earns confirmation and votes with the court’s current liberal bloc, the new median justice will become Stephen Breyer, the most liberal median justice since 1937, when the scholarly rankings began,” the article reports. “If Mr. Garland is more conservative than Justice Breyer, but more liberal than Justice Kennedy, Mr. Garland would become the new median, the most liberal in nearly 50 years.”
A U.S. News & World Report article entitled “Ranking the Politics of Supreme Court Justices” shows how fortunate the conservative movement has been in recent years. The article, which is based on a scholarly paper by University of Chicago law professor William Landes and Seventh Circuit Court of Appeals judge Richard Posner, reports that Clarence Thomas was the most conservative judge on the U.S. Supreme Court from 1937 to 2006.
There were 43 Supreme Court judges from 1937 to 2006. Thomas took the conservative position on a Supreme Court case 82.2 percent of the time from the time he became a Supreme Court judge in 1991 until 2006.
The second through fifth most conservative judges from 1937 through 2006 were William Rehnquist (81.5 percent), Scalia (75.7), Roberts (75.3) and Alito (74.0). Kennedy was 10th at 64.7 percent. “Four of the five most conservative justices since 1937 are on the bench today,” the article said in reference to Thomas, Scalia, Roberts, and Alito.
The Landes-Posner study concluded that Thurgood Marshall, the judge Thomas replaced on the Supreme Court, was the most liberal judge from 1937 through 2006. He took the conservative position on a Supreme Court case only 21.1 percent of the time. Like Marshall, most of the other most liberal judges were on the Court during the 1960s and 1970s. The most liberal current judge according to this study was Ginsburg, who ranked ninth with a conservative score of 31.2 percent.
Supreme Court aficionados know that Roberts and Alito had only recently become Supreme Court judges in 2006, but there are other studies that show that these two George W. Bush nominees have been among the most conservative judges in recent Supreme Court history.
A chart on Wikipedia entitled “Ideological Leanings of Supreme Court Justices” shows that Alito’s record through 2011 was the second or third most conservative record from 1950 through 2011.
Thomas was the most conservative, according to the study by Georgetown University American Government professor Michael A. Bailey. Alito was about as conservative as Stanley Reed, who was a Supreme Court judge from 1938 through 1957. The only other judges who ranked as more conservative than Roberts were Scalia, Rehnquist, Fred Vinson (1946-1953), and Sherman Minton (1949-1956).
Bailey’s research shows that the current liberal bloc on the U.S. Supreme Court — Breyer, Ginsburg, Kagan, and Sotomayor — is considerably more liberal than the conservative bloc of Alito, Kennedy, Roberts, and Thomas.
The research also shows that Republican nominees David Souter and John Stevens were very liberal during the last several years of their tenures. Souter was replaced by Sotomayor in 2009 and Stevens was replaced by Kagan in 2010.
This Wikipedia page also lists how conservative and liberal the Supreme Court judges are on seven issues areas — criminal procedure, civil rights, first amendment, union, economic, federalism, and federal taxes. On criminal procedure, Ginsburg, Breyer, Sotomayor, and Kagan had liberal scores of 61.9, 56.2, 62.5, and 71.4 percent respectively, while Scalia, Kennedy, Thomas, Roberts, and Alito had liberal scores of 27.0, 32.2, 21.2, 28.1, and 19.9 percent respectively.
The difference between a conservative judge and a liberal judge on the Supreme Court could be the difference between law and order and the coddling of criminals.
Replacing the conservative Scalia with a conservative is crucial to the United States. Replacing liberals like Souter and Stevens with liberals like Sotomayor and Kagan can be justified, but replacing Scalia with a liberal like Merrick Garland is unacceptable and potentially dangerous.