Does Federal Executive Branch Experience Explain Why Some Republican Supreme Court Justices 'Evolve' and Others Don't?

Abstract:     
Why do some Republican Supreme Court Justices evolve over time, becoming more liberal than they were - or at least more liberal than they were generally thought likely to be - when they were appointed, while others prove to be every bit as conservative as expected? Although idiosyncratic factors undoubtedly play some role, for every Republican nominee since President Nixon took office, federal executive branch service has been a reliable predictor. Nominees without it have proved moderate or liberal, while those with it have been steadfastly conservative.

This Essay demonstrates the correlation for all twelve Republican appointees during this period and hypothesizes a selection effect: important legal positions in Republican Administrations during this period went to, and were sought by, committed conservatives. By contrast, during this same period Republican Presidents named Washington outsiders when, for a variety of reasons, ideological purity was subordinated to other concerns, such as avoiding a confirmation fight. These observations suggest that Senators should pay attention to what Presidents apparently already know: federal executive branch experience strongly predicts a potential Justice's future voting pattern.

Working Paper Series