How will the next justice appointed to the Supreme Court vote? The answer, history tells us, is: We don’t know for sure. Surprises happen.

As for now, in 2017, the suspense is over, and President Bannon-Trump has nominated Neil Gorsuch. And now, the speculation has begun. Typically, members of the Senate Judiciary Committee try to pin nominees down on how they might vote on crucial issues. Their writings and previous rulings are literally scrutinized and figuratively x-rayed, examined microscopically and carbon dated.

But you don’t really know how they’ll vote until they do it. That’s not a very satisfying answer, especially if you’re on the Senate Judiciary Committee and hope to be able to say, years from now, “I told you so.” But among legal scholars, journalists and Supreme Court junkies, judicial predictability is a subject of debate.

Examples abound of justices who turned out to be exactly what their appointing presidents had hoped for, hewing closely to a particular judicial or ideological philosophy. But many justices have surprised their presidents and supporters with “unpredictable” votes. Here are some of the factors that play into the discussion:

It depends on the meaning of the word “surprise”

An article in Time attempts to debunk several myths about the Supreme Court. Among these is the myth of surprise votes. Time says:

One way to feel better about a prospective Supreme Court Justice nominated by a President you don’t much care for is to invoke the common wisdom that many Justices, after ascending to the high court and the life tenure that goes with it, betray the politics of their appointing Presidents. And it is true that history reveals a fair number of Justices who defied expectations. But there is much less to this than meets the eye. With few exceptions, the “surprise” Justices were either picked for non-ideological reasons or were foolishly misjudged by the President making the appointment.

Exhibits A and B

President Dwight D. Eisenhower was once asked if he had made any mistakes as president. His widely quoted answer was, “Yes. I made two mistakes, and they’re both on the Supreme Court.”

Eisenhower was referring to Earl Warren and William Brennan. He chose Warren, who was governor of California, as part of a political deal. (Brennan had supported Eisenhower’s bid to become the Republican Party’s nominee.) Ike chose Brennan—a Democrat—because he was a northeastern Catholic, for the demographics. Historians suggest that Eisenhower should not have been “surprised” when Warren and Brennan became the leading forces behind the aggressively liberal Supreme Court in the 1960s, because he hadn’t chosen them as a way of perpetuating his own ideology.

Another non-surprise “surprise”

Another example cited by Time is David Souter:

President George H.W. Bush expected [Souter] to be a reliable conservative, but he quickly emerged as anything but. Bush, however, had no one to blame but himself (and perhaps his chief of staff, John Sununu, who reportedly told Bush that Souter would be a “home run” for conservatism). As became obvious at his confirmation hearing, Souter’s brand of moderate New England Republicanism was completely at odds with the pro–states’ rights, pro–prayer in schools, pro-life, anti–affirmative action views that make for a judicial conservative on the modern court. [Souter joined in a ruling affirming a woman’s right to an abortion, and he became a reliable liberal vote. He was one of the four dissenters in the 2000 decision in Bush v. Gore that sealed the presidential election for George W. Bush.]

In other words, Souter wasn’t a surprise: Bush just blew it.

True shockers

Over the past 60 years, many justices have dashed the expectations of their sponsors by changing “sides” on crucial issues. (Republican presidents have experienced this judicial “switch” more often than have Democratic presidents.)

Among recent justices, Sandra Day O’Connor stands out for the surprise she sprang on Ronald Reagan, who appointed her, and on Republicans who initially supported her. Before her appointment to the court, O’Connor was on record as unequivocally “pro-life.”  On the court, however, she voted against every effort to overturn or alter the 1973 Roe v. Wade decision.

Justice Harry Blackmun also exemplifies this phenomenon. A 2005 article chronicled his dramatic shift to the left:

Appointed by President Nixon in 1970, Blackmun initially voted consistently with Chief Justice Warren Burger. As time went on, though, his voting record diverged from Burger’s. The turning point came in 1973, when Burger assigned Blackmun the job of writing the majority opinion in Roe v. Wade. The public’s negative reaction forced him to defend the decision, and that defense—and it’s logical extensions, gradually led him to adopt positions far different from those with which he arrived on the court, and he came to champion the rights of women and the poor.

Another case in point is Byron “Whizzer” White. Appointed in 1962 by President Kennedy, who had met him at Oxford, White was thought to be a moderately liberal justice. A decade after Kennedy died, White cast one of only two dissenting votes against Roe v. Wade.

An additional notable example is Felix Frankfurter. He joined the Supreme Court after a career as a liberal law professor, and he also was among the founders of the American Civil Liberties Union. But, legal historians say that

“he was regarded as a turncoat by many for failing adequately to support civil liberties, especially when harsh anti-Communist measures were enacted in the 1940s and 1950s.”

Finally, an anecdote published in the National Catholic Reporter exemplifies the difficulty of predicting how a Supreme Court nomination will turn out.

In a recent article in The Washington Post, Stewart Spencer, political strategist to President Gerald Ford, recalled the bishops’ involvement in the selection of Justice John Paul Stevens in 1975.

Spencer said that he met with a delegation of bishops and they gave him a list of three candidates. He continues: “I [later saw the president] and said: ‘I met with the bishops of the Catholic church today. They have an interest in your appointment to the Supreme Court.’ [Ford] smiled. ‘I bet they do.’ I pulled out this list and said: ‘They gave me this list. These are people who are acceptable to them. I’m not going to lobby, I’m just going to give you the list.’ He looks at the list, puts it in his drawer. … Ten days later he appoints John Paul Stevens to the bench. He was on the list.”

Stevens went on to become the court’s most stalwart liberal vote, including defense of Roe v. Wade.

The lifetime factor

Being appointed to the Supreme Court for life may be an ideological liberator, say some observers. This lifetime factor may contribute to what some call the “dirty little secret” of Supreme Court tenure: Many justices, no longer needing to build a record based on a particular ideology, turn out quite different from what anyone thought they’d be.  No matter how carefully they’re screened, goes this theory, any judicial nominee could undergo a transformation in either direction after assuming a life-tenure seat on the high court.

But a justice doesn’t have to do a full 180-degree turn to exhibit a change in course. According to an article in the Northwestern Law Review: “…contrary to popular wisdom, virtually every Justice serving since the 1930s has moved to the left or to the right” [of where he/she presumably began].

Others disagree with this theory of “judicial drift.” “Most justices’ careers display consistency rather than drift,” says Christopher Eisgruber, provost and professor of public affairs at Princeton University.

“For example, Justice John Paul Stevens hasn’t changed his basic approach to constitutional issues since his 1975 appointment by President Gerald Ford, even though he recently disavowed the death penalty.”

Another scholar’s analysis of 22 justices appointed from the 1950s onward found that in all but four or five cases, the justices’ records were close to the ideology of the president who appointed them.

What’s a president to do?

The most important factors in avoiding Supreme Court surprises, says Lee Epstein, law professor at Northwestern University, are whether the president looks for a nominee who reflects his own ideology and whether the Senate is compliant. When those forces are in alignment, “the president is going to get what he wants.”

Will Republicans get what they want from Gorsuch, if he is approved?  We’ll get back to you with the answer to that question in, say, 30 years.

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It is all but guaranteed that President Trump’s nomination of Neil Gorsuch to sit on the Supreme Court will create a political inferno, aggravating the hysteria that is fracturing our nation. The debate involves numerous controversial issues, such as abortion, gay rights, campaign finance, affirmative action, religious liberty, and the constitutionality of social legislation such as the Affordable Care Act.

Here are five basic questions about our constitutional system that should be asked of any nominee to the Supreme Court. While I don’t consider the recommended answers sufficient to determine if a candidate should be appointed, they are a necessary first step.

Question One: The Supreme Court has created many “fundamental rights” that it vigorously protects. Over time, the Court alters these rights. Which fundamental rights are the most fundamental?

Answer: To prevent the Republic from degenerating into mobocracy, oligarchy or tyranny, the Court must uphold the electoral process. Elections should never be suspended. For example, Americans conducted a pivotal Presidential election in the middle of the Civil War. The Court also must protect the right to vote from unwarranted governmental interference.

Furthermore, elections are meaningless if people do not have robust freedom of political speech. The government should not be able to suppress particular viewpoints. Nor should governments punish anyone for “seditious libel.” The Court should interpret Brandenburg v. Ohio to hold that a defendant did not commit criminal incitement unless they intentionally encouraged people to violence and there was good chance that their inflammatory rhetoric would soon cause violence. In other words, it would never be a criminal act to encourage nonviolent civil disobedience. These core First Amendment rights protect individual sovereignty, self-expression, and the ability to participate authentically in the political process.

Perhaps the most important civil right is a citizen’s right of personal mobility. After a criminal conviction, most other rights mean little. The government should not be able to incarcerate an American citizen unless tried in an Article III Court by a jury of their peers (a right found in the Magna Carta). Thus, I agree with the dissent in Hamdi v. Rumsfeld, written by the late Justice Scalia and joined by Justice Stevens. The Supreme Court should not have permitted military tribunals to adjudicate terrorism charges against American citizens. It is too tempting to call political opponents “terrorists” and imprison them. There is not a lot of support for Scalia’s position among the elite, but sometimes the Court gets it terribly wrong.

Question Two: The Supreme Court has become a major political issue. Witness the furor surrounding your nomination. Do you think the Court has become too involved in electoral politics?  If so, how can it escape?

Answer: The Court has become too entangled in partisan politics. The Court should show significant, but not absolute judicial restraint by presuming that most laws and governmental actions are constitutional. The Court also should be wary of revisiting most prior constitutional decisions. I would be reluctant to strike down a law unless at least five other Justices agreed.  There are too many five-to-four opinions reflecting the competing ideologies of the two major Parties.

Question Three: What is the greatest threat to this nation’s domestic tranquility and the social fabric? What can the Court do to alleviate the problem?

Answer:  Feeling a loss of power, the populace has become shrilly divided along racial, gender, class, and religious lines. At a minimum, the Court must not permit governments to discriminate maliciously and expressly against people because of their race, gender, ethnicity, religion, or political viewpoints. The Supreme Court’s decision to outlaw overt school racial segregation in Brown v. Board of Education was one of its greatest acts.

Question Four: Do you believe in “the rule of law?”  What does it mean to you?

Answer: While it might be more accurate to say that our legal system consists of “the rule of law and judges,” we will lose our republic if the “rule of law” is discarded. The phrase has many meanings. The heart of the doctrine is that nobody, including the President of the United States or the CEO of Goldman Sachs, is above the law. For example, Clinton v. Jones properly decided that there is no absolute Presidential immunity.

There is extraordinary fear and anger right now. People across the political spectrum need to know that the Supreme Court will always protect their basic civil liberties.

Question Five: We would like to learn a bit more about your character. You have had a remarkable legal career. What have you done outside of the law to humbly help people without expectation of reward?

Answer: I have not relentlessly focused on my career. Here are some examples of how I have assisted friends, family, and individual members of the community….

These hoped-for answers provide a strong foundation for our republican system as long as most people across the political spectrum agree. Americans have developed a large set of core values and traditions that can sustain the best aspects of our society and provide us with the means to adapt to new challenges. Whatever you think about my opposition to military tribunals, there is much more common ground and good will than many Cultural Warriors on both sides would have you think. If not, then we have much more to worry about than Donald Trump or excessive political correctness.

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