July 14, 2005
By Paul Rosenzweig
Perhaps Sen. Charles Schumer should have taken the Quiet
Here's what the New York Democrat reportedly was overheard saying
the other day on Amtrak: "Even William Rehnquist is more moderate
than they expected. The only one that resulted how they predicted
[was] Scalia. So most of the time they've gotten their picks wrong,
and that's what we want to do to them again."
Whether or not this quote from the Drudge Report is accurate, the
sentiment is correct: The litany of conservative disappointments
over Supreme Court appointments is a long one. Earl Warren. Harry
Blackmun. John Paul Stevens. Anthony Kennedy and Sandra Day
O'Connor, at least some of the time. David Souter (all of the
time). President Eisenhower once said that appointing William
Brennan to the bench was the biggest mistake of his
Why is that? Why do supposedly conservative justices so frequently
disappoint the presidents who appoint them? And why is this
disappointment so often a one-way ratchet, at least in modern
times? After all, you rarely hear liberals complain about Stephen
Breyer and Ruth Bader Ginsburg.
Some of our liberal friends might say, perhaps jokingly, that
certain conservative justices have changed their leanings because
they found wisdom and learned the error of their ways.
Those looking for a more plausible answer need to look deeper.
Justices change their views because they are people, and, at the
core, people want to fit in. They want to be respected and liked by
those whose opinions they value. Supreme Court justices come to
Washington from around the country -- Arizona, Illinois, New
Hampshire, etc. -- and soon are immersed in, indeed overwhelmed by,
the sea of Washington elites.
And let's be honest, today in Washington the elite norm is broadly
liberal. Since the 1950s, America's major institutions -- the
media, the world of arts and letters, the academy and the legal
profession -- have become increasingly liberal. So if you want to
fit in, in Washington, you usually fit in as a liberal.
The phenomenon is so common that frustrated conservatives even have
a name for it. They call it the "Greenhouse Effect," named after
The New York Times' influential court reporter, Linda Greenhouse,
whose favorable coverage represents the mark of social acceptance
in elite circles.
What Sen. Schumer instinctively understands is that there are
really two types of conservatives. Some, like Sandra Day O'Connor,
are conservative on particular issues, such as property rights.
Their conservatism flows from cultural predilection. Others, though
-- Antonin Scalia and Clarence Thomas come most readily to mind --
are philosophical conservatives, committed to interpreting the
Constitution as written and resistant to the "politically correct"
And that, at its core, is why conservatives are so focused on the
next Supreme Court nominee: Because they know that only one type of
conservative can resist the siren call of the Greenhouse Effect.
They trust only conservatives of principle, those who have shown
their ability to remain principled despite expediency.
Conservatives like O'Connor, who are conservative by instinct alone
without an underlying philosophy, often "grow" on the bench, to
That's why conservatives want President Bush to nominate someone in
the Scalia or Thomas mold. Conservatives have gotten their picks
wrong before, and liberals want them to do it again.
You'll probably know who has carried the day as soon as the
president names his selection. If it's an "instinctive"
conservative, liberals will, once again, have lost the battle (when
the nominee is confirmed) and won the war (when he or she "grows).
It takes only a little time in the nation's capital for the
Greenhouse Effect to work its magic.
is a senior fellow in the Heritage Foundation Center for Legal and
Judicial Studies and a former Justice Department lawyer.
Distributed nationally on the Knight-Ridder Tribune wire
Perhaps Sen. Charles Schumer should have taken the Quiet Car. Here's what the New York Democrat reportedly was overheard saying the other day on Amtrak
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