Antonin Scalia is dead. President Barack Obama will soon be nominating his replacement. There should be no surprises.
There can be zero doubt that Obama and his team have their short list updated and ready to go. Five or six names, perhaps? And a much longer list of backups just in case.
Who is on the list is a bit of an open secret. People who follow the Supreme Court and its politics can take very informed guesses as to whose names are in the president’s back pocket.
Much of the vetting has already taken place. Someone will be tabbed shortly. That person will reflect much (although of course not all) of Obama’s legal and political philosophy. That person will probably be liberal on some issues, center-right on others.
After being contacted, but before being publicly announced, the nominee will begin receiving expert grooming from the White House on handling the press and the Senate confirmation hearings.
That person will be smart, polite, and tight lipped in public.
All will go according to plan. There will be no surprises. The process will be boring. Their appointment is a fâit accompli. Their tenure as one of the nation’s nine highest arbiters will be straightforward.
It’s been a while since a Supreme Court member didn’t really behave as advertised. It’s been a while since a nominee botched it and fell short of the bench.
But oh, how it used to be different.
Does the name Harriet Miers ring a bell? Eleven years ago, George W. Bush displayed his true incapacities in presidential politics, showing the world he was in over his head by nominating a crony to the Supreme Court in an era when that as no longer shrugged at.
It came about when Bush had to make two appointments in less than a month. First Sandra Day O’Connor announced her retirement. Then Chief Justice William Rehnquist died of cancer. What to do?
Miers was the head of Bush’s team to find a replacement for O’Connor. That led to John Roberts. But when Rehnquist died, Bush named Roberts to replace the Chief Justice instead of O’Connor.
Who next? I dunno. How’s about the old friend who helped me find Roberts, I guess, duhhhhhhhhh.
She clearly wasn’t up for the task. Even Conservatives rebelled at having an under qualified lightweight take up a precious spot. Democrats just chuckled at the fiasco.
Bush withdrew the Miers nomination and went with Samuel Alito instead. Which is actually kind of a bummer.
The Miers embarrassment seems, more than anything else, to have been about Bush’s jocular incompetence in the rush of bad timing. Have his people come up with a nominee? Sure. Two at a time. Uh oh.
But the process was in place. And so Bush could gather his wits, read the political writing on the wall, and start over.
After all, by now it’s been nearly 30 years since the U.S. Senate has outright rejected a presidential nominee. Nearly 30 years since they shot down comic book bad guy Robert Bork.
Bork was brash and unapologetic during hearings, allowing his extremist views to hit the mic unfiltered. It gave a Democratic Senate the ammunition it needed to sink him. The lesson was learned. Since then, nominees are confident but contrite. Let the Senators grandstand while revealing little more than your expertise.
A few years later, Clarence Thomas nearly went down in flames after a sexual harassment scandal came to light during his confirmation hearings. He was saved by playing the race card, by the nation still being backwards on sexual harassment generally, and specifically by the Senate still being very much an old boys’ club that didn’t find that much fault in a male boss asking his female employee to watch porn or leaving pubic hairs on her can of Coke.
Not worrying too much about that shit is what passed for a Liberal when the likes of Joe Biden and Ted Kennedy were still running the Judiciary Committee.
Thomas got through, and the other lesson was learned: Vet them thoroughly.
And so now it’s all very straightforward. Surprises are highly unlikely. Nominees play it close to the vest. No skeletons come out of the closet during hearings. Afterwards, they perform as planned.
But once upon a time, all Supreme Court appointments were wild cards.
With a lifetime appointment, becoming a Supreme Court justice has the potential to let someone free themselves and spread their wings. They used to say “The robes make the man” for a reason. Before the modern era of sophisticated vetting and in-depth background checks, you never really knew what you were getting.
Such as John Marshall Harlan.
The turn of the 20th century Supreme Court justice was a Southerner and a former slave owner. He also turned out to be the only vote against Plessy v. Ferguson, the 1893 case that affirmed segregation. The Northern justices were just peachy keen with it.
During the 20th century there were a host of appointments that didn’t go as planned, people who revealed their true legal colors only after they reached the nation’s highest bench. People who thought twice after donning those robes.
Byron “Whizzer” White (I’m only citing his college football nickname because I know how much he hated it), was appointed by Liberal icon John Kennedy. But White turned out to be anything but Liberal. He dissented in Miranda v. Arizona, which assures innocent-until-proven-guilty people are entitled to their 5th amendment rights during police interrogations. I mean, fuck ‘em, they’re probably guilty anyway, right? White wrote the dissent in Roe v. Wade (Rehnquist was the only other No vote). He dissented in Thompson v. Oklahoma because he thought executing minors was A-Okay (as did Rehnquist and our man of the moment, Scalia). He voted yes on Griswold v. 
Connecticut, which established the right to contraception, but he refused to join the majority opinion that established the right to privacy. He wrote the majority opinion in Bowers v. Hardwick, which upheld Georgia’s anti-sodomy law.
Then there was Abe Fortas, appointed by Liberal beacon Lyndon Baines Johnson. Fortas did indeed turn out to be a reliable Liberal on the Court. He also proved to be easily the most scandal plagued justice since the WWII, and maybe this entire century. He resigned in the face of a possible impeachment after only 4 years on the Court.
So much for vetting.
During the last half of the 20th century, the Republicans have had even more trouble controlling their justices than the Democrats. Perhaps that’s not surprising since GOP chief executives have made many more appointments. Dwight Eisenhower alone placed 5 justices on the Court.
Democrats, meanwhile named only 2 justices during the more than 40 year period after LBJ’s last and Obama’s first (2 for Clinton, none for Carter). During that stretch, Republican presidents made 13 appointments to the court (Nixon 4; Ford 1; Reagan 4; Old Man Bush 2; Bush the Younger 2).
When it comes to renegade Republican justices, Earl Warren is the most famous example. Or infamous, depending on one’s point of view.
As governor of California, Warren had advocated the internment of Japanese Americans. As an Eisenhower appointee to the Court, however, Warren went on to be one of the most liberal justices of all time. His first act was marshaling (pun intended) the court into a unanimous decision in Brown v. Board of Education, which over turned Plessy.
Indeed, the Warren Court, named for his two-plus decades as its Chief Justice (1953-74), is generally acknowledged as the most Liberal of the 20th century (Liberal and Conservative didn’t have their current meanings prior to that).
Gerald Ford appointee John Paul Stevens was lodged firmly in the Liberal wing during his 35 years on the Court.
Richard Nixon appointee Harry Blackmun swung left over the course of his career on the Court and famously authored the majority decision in Roe v. Wade.
Another Nixon appointee, Warren Burger, was Conservative but nonetheless ruled in favor of Roe. The Conservatives still really hate him for that, more so than the fact that he’s generally considered one of the worst Chief Justices of all time in terms of his handling of the Court and his over all legal acuity.
So what you saw was not always what you got. Once upon at time, one never knew who might be revealed by those robes, like Vincent Price laughing behind a mask. But those times are behind us.
Nowadays, in many modes of life, what you see is exactly what you get, and what you see is depressingly predictable. The advertisements. The fast food. The pop culture. The songs, the TV shows, the athletes, actors and musicians whoring themselves to whichever corporation will pay them to sell whatever crappy product.
Whomever Obama nominates in the next couple of weeks.
Which is not to slight that person. Hopefully it’s a smart, insightful scholar with a profound sense of jurisprudence and an appreciation of all the complexities and contradictions in life and the law.
But either way, as that person is named, the confirmation process unfolds, and their time on the Court proceeds, for better or for worse, there will probably be precious few surprises.