1)"Justices often surprise the presidents who pick them"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 nonideological reasons or were foolishly misjudged by the President making the appointment. Republican President Dwight D. Eisenhower, for example, is famously reported to have said the two biggest mistakes of his presidency were appointing Earl Warren and William Brennan, the leading forces behind the aggressively liberal court of the 1960s. But Eisenhower chose Warren — a bipartisan governor of California — not because of ideological affinity but because of a political deal. And Brennan, a Democrat, got the nod because, at a time when demographics mattered more than today, he was a Northeastern Catholic. So, while Eisenhower may have been disappointed, he should hardly have been surprised, as he did not make his selections with an eye to replicating his own ideology in the court.
Another example is the now retiring David Souter, whom President George H.W. Bush expected to be a reliable conservative but quickly emerged as anything but. Bush, however, had no one to blame but himself (and perhaps his chief of staff, John Sununu, who vouched for Souter in the first place). 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. In other words, Souter wasn't a surprise; Bush just blew it.
In fact, history shows that most Justices perform very much as might have been predicted and are only perceived to be more liberal or conservative than expected because, sometimes, during several decades of service, the court ideological balance changes around them. A good example would be Hugo Black. In the 1930s, President Franklin D. Roosevelt put him on the court to counter the judicial activism of court conservatives who were invoking the Constitution's due-process clause to strike down important parts of the New Deal. Black's more restrictive approach to due process, the "liberal" approach at that time, fit Roosevelt's agenda to perfection. But when the liberal activists on the Warren Court tried to use the due-process clause for their own purposes, Black balked — and was thereby misperceived as having "moved to the right."
No President can effectively anticipate what issues the court will face a generation hence. But, with few exceptions, the résumés of prospective nominees make abundantly clear where they stand on the litmus-test issues of our time. Indeed, with Souter gone, the current court does not contain a single Justice whose jurisprudence has deviated significantly from what would have been predicted at the time of his or her appointment.
Explain how the author makes the point with one of the historical examples he uses