[NOTE: Part I can be found here.]

In evaluating judicial nominations and predicting the drift of a judge’s future decisions, one caveat I would offer is that nearly any judge with a long history is going to have decided some cases in ways that are not to your liking. It’s the aggregate that matters more, and just about everyone agrees that Brett Kavanaugh’s body of decisions taken as a whole is markedly conservative. But, as was clear in the Jacobs article discussed in Part I of this series, some people will be emphasizing whatever in that history they find to be at fault. And Kavanaugh’s history of rulings is long, so it’s not surprising there are possibilities for criticism and doubt about certain decisions of his.

But most important is the question: what does Kavanaugh’s future as a justice hold? Not only whether he will be given the Senate stamp of approval (after all, his possible elevation to the Supreme Court the only reason we are concerned with him right now), but will he be a consistently conservative justice if and when he becomes a SCOTUS member?

After all, it’s hardly a given that past performance is a prediction of future performance, especially with supposedly-conservatives who join the Court. I believe that previous disappointment with the later record of other purportedly conservative justices is the reason for articles such as Jacobs’—the authors are trying to predict the future and to scope out the degree of conservatism of each candidate and the depth and durability of their dedication to conservative principles.

Once you’re seen what happened with the transformation of justices Earl Warren and David Souter, and to a much lesser degree with Anthony Kennedy himself, it pays to be skeptical. However, although appointed by the Republican (although not conservative) President Eisenhower, and a Republican himself, Warren had a record as a progressive as governor of California prior to his SCOTUS stint. What’s more, Warren had never been a judge before and therefore had no record whatsoever of pre-SCOTUS judicial decisions (he had been a prosecutor and AG, however).

In addition, with Warren Eisenhower “wanted what he felt was an experienced jurist who could appeal to liberals in the party as well as law-and-order conservatives.” Doesn’t sound like a conservative resume to me, even before his appointment. His liberal turn as justice probably shouldn’t have come as a complete surprise.

As for Souter, he did have a lengthy record as a judge and was thought to be conservative one. However, tellingly, “In his testimony before the Senate…he portrayed himself as a moderate who disliked radical change and attached a high importance to precedent.” Even more importantly, I believe, is the fact that, “In the state attorney general’s office and as a state Supreme Court judge, he had never been tested on matters of federal law.” So it would have been difficult to predict his positions on those matters. What’s more, Souter ruled with the conservatives on the Court for several years, and only turned liberal slowly. But turn he did.

I don’t know how Kavanaugh will ultimately turn out, nor could I. I will say, however, that although there are marked and glaring exceptions, most conservative justices do stay conservative (think Scalia and Thomas, just to take two recent examples). And in Kavanaugh’s case there is a fairly lengthy record of conservative decisions to go on, including matters of federal law, which is more of an indication of his propensities than if he had only been a judge for a short while or a state judge like Souter.

In general, I think there are two reasons that supposedly-conservative justices sometimes drift leftward. The first is the temptation of power: to remain conservative, a justice needs to hold the line and not expand the power of the Court (and therefore his/her own power) to make new law, whereas liberal justices love to find penumbras and the like that allow them to expand the reach of government and/or create a right that previously didn’t exist. That is tempting, is it not? The longer a person spends in the rarefied atmosphere of the Court, the more seduced he/she can become by that power to change things, coupled with the idea of his/her own brilliance and remarkably good judgment. Change by the mechanism of a SCOTUS decision is fast compared to the often-frustrating pace of Congressional changes, and this presents an additional temptation for a justice.

A second reason for leftward drift can be the influence of other justices. In the past, during times when there was a minority of conservatives justices on the Court and the rest were liberal, that human tendency among many people to be influenced by others was probably operating for some justices whether they realized it or not. Humans are social creatures, justices are human, and groups often exert an influence. Now, however, the Court is more evenly balanced or even tilting conservative (that’s what all the recent fuss has been about on the left, after all). So now there may be more reinforcement for holding the conservative line, and this should help Kavanaugh stick to his conservative principles.