How Republican presidents have done picking Supreme Court justices since 1953

Let me give you a number that ought to end a few arguments at the family table. When the Supreme Court decided Roe v. Wade in January 1973, seven justices were in the majority. Five of those seven had been put on the Court by Republican presidents. Nineteen years later, when the Court reaffirmed the core of Roe in Planned Parenthood v. Casey in 1992, eight of the nine justices on the bench had been nominated by Republican presidents. Eight of nine. The only one who wasn't was Byron White, appointed by John F. Kennedy, and he dissented.

So when a conservative voter says "just elect a Republican and the Court will take care of itself," the record has a polite but firm answer: it did not, for decades. Dobbs did not arrive until 2022, nearly half a century after Roe, and it arrived only because the party eventually changed how it picked judges. That change is the story of this post. Below is every Republican nominee who made it onto the Court from 1953 to the first Trump term, a table you can check, and the lessons the party paid dearly to learn.

The method: what I am counting and what I am not

A fair scorecard needs rules, so here are mine.

• I count the justices nominated by a Republican president and confirmed, starting with Dwight Eisenhower in 1953. That is the first Republican president after the long Democratic stretch from 1933 to 1953. Elevating an existing justice to Chief Justice (William Rehnquist in 1986) is noted but not counted twice.
• I judge each one by a simple question: did this justice, over a career, apply a restrained, text-based approach to the law that conservatives would recognize, or did the justice drift to the other camp on the issues that matter to conservative voters?
• That judgment is a value claim, and I am telling you so. The facts in the table (who nominated whom, when) are public record. The "My read" column is my argument and you may disagree with it.
• The table runs through Donald Trump's first term. For any nomination after that, check Congress.gov.

The table

Count the rows: that is 20 justices. Here is how my read sorts them.

1. Conservative: 8. Harlan, Rehnquist, Scalia, Thomas, Roberts, Alito, Gorsuch and Kavanaugh. That is 8 of 20, or 40 percent.
2. Moved left: 5. Warren, Brennan, Blackmun, Stevens and Souter. That is 5 of 20, or 25 percent.
3. Swing or mixed: 5. Stewart, Burger, Powell, O'Connor and Kennedy. Another 25 percent.
4. Brief or too early to judge: 2. Whittaker and Barrett, 10 percent.

Check the sum: 40 plus 25 plus 25 plus 10 is 100. Eight and five and five and two make 20.

So the record is mixed. One in four Republican picks moved left on the issues that brought conservative voters to the polls, and another one in four spent a career in the middle. If a quarter of your investments reliably went the wrong direction, you would change your process.

Failure one: the party trusted the label (1953 to 1990)

Start with the two picks that hurt most. Eisenhower named Earl Warren, a popular Republican governor of California, as Chief Justice in 1953, and he named William Brennan, a New Jersey judge and a Democrat, in 1956, an election year, when observers saw political value in naming a Catholic Democrat. Both became architects of a Court that conservatives spent decades arguing against. Accounts of Eisenhower's later years say he was disappointed in how both turned out. The lesson of the 1950s was simple. A nominee's party, politics and geography are not a judicial philosophy.

Richard Nixon campaigned in 1968 on appointing "strict constructionists," and he deserves credit for putting the Court on the ballot. But his record in office shows how a good slogan can go wrong. The Senate rejected two of his nominees, Clement Haynsworth in 1969 and G. Harrold Carswell in 1970, which left him with a vacancy and a fight. His four who got through included Burger, Blackmun and Powell, who all joined the Roe majority, and Rehnquist, who dissented from it. Burger wrote for a unanimous Court in United States v. Nixon in 1974, ordering the President who had appointed him to turn over the Watergate tapes (our piece on United States v. Nixon and What the Court Really Said About Executive Privilege has the details), which tells you something about the independence of a judge once he is on the bench. I think that is a point in the Court's favor. But it also tells you that a President cannot count on a judge to rule for him, and a voter should not count on one to rule for the voter's side. The only reliable thing is the judge's own philosophy, in writing, long before the nomination.

Gerald Ford had one pick, John Paul Stevens, in 1975. Stevens served until 2010 and ended his career as a leader of the liberal wing. A President with barely two and a half years in office had named a justice who sat for nearly 35.

Then comes the Bush family and a lesson that cost the party a generation. George H. W. Bush named David Souter in 1990 to the seat of Justice Brennan. Souter had a thin public record, which many observers took to be the point: after the defeat of Robert Bork, the White House wanted a nominee with few writings to attack. Souter's New Hampshire friends and the party establishment vouched for him. In Casey (1992) he was one of the three authors of the joint opinion that reaffirmed the core of Roe, along with O'Connor and Kennedy, all three Republican appointees. The slogan that came out of it among conservatives was blunt: no more Souters. It became the most expensive lesson in modern judicial politics.

Failure two: the nominees the party itself rejected

Not every failure came from the Senate floor. Two are worth studying, because they show that conservatives can be tough on their own side.

Robert Bork, 1987. President Reagan nominated Judge Bork, a famously thoughtful and famously public originalist, to the seat of Lewis Powell. Bork had written for years, and his writings were used against him. The Senate rejected him on October 23, 1987, by a vote of 58 to 42. The Reagan administration's next choice, Douglas Ginsburg, withdrew within days, and the third, Anthony Kennedy, was confirmed in early 1988. The lesson the party took from Bork was a bad one at first, namely that a long paper trail is a liability. That led straight to Souter. The deeper lesson, which took years to sink in, is that a nominee who has defended his philosophy in public can be confirmed if the President and the Senate are willing to fight for him and if the public is persuaded.

Harriet Miers, 2005. George W. Bush nominated his White House counsel in October 2005 to replace Sandra Day O'Connor. Conservatives, not Democrats, sank the nomination. They said, correctly I think, that the party had a bench of experienced judges with written records, and that "trust me" was no longer enough. Miers withdrew on October 27, 2005, and Bush nominated Samuel Alito, a judge on the Third Circuit with fifteen years of opinions, who was confirmed in January 2006.

Read that last sentence again. The party's own base told the White House to pick someone with a record, the White House listened, and the pick was a success. That is the system working.

The turn: the list and the Federalist Society

The change in method came in two parts.

The first was the Federalist Society, founded in 1982 by law students and young lawyers who wanted a forum for conservative and libertarian legal ideas. We tell the founding story in How a Handful of Law Students in 1982 Changed the Federal Courts. Over three decades it built a network of lawyers, professors and judges who knew one another's writing. By the 2000s a Republican White House could draw on a pool of candidates with long, public judicial records. That is the reason a nominee like Alito or Gorsuch was a known quantity.

The second was the published list. On May 18, 2016, Donald Trump, then the presumptive Republican nominee, released a list of eleven names from which he said he would choose a Supreme Court justice, and he later expanded the list to 21. He said it was prepared with help from conservative legal organizations. Voters could read the names and the opinions behind them. This was new. Candidates had always said "I will appoint judges like Scalia"; Trump handed voters the names and said, in effect, hold me to it. The 2016 election came after Justice Scalia's death on February 13, 2016, and after the Senate refused to act on President Obama's nominee, Merrick Garland, nominated March 16, 2016. Whatever you think of that decision, it made the Court an issue voters understood.

Trump then named Neil Gorsuch (2017), Brett Kavanaugh (2018) and Amy Coney Barrett (2020). They replaced Scalia, Kennedy and Ruth Bader Ginsburg. In June 2022, in Dobbs v. Jackson Women's Health Organization, the Court overruled Roe and Casey. Five justices voted to overrule them, including all three Trump appointees, and the Chief Justice concurred in the result on narrower grounds. Dobbs came 49 years after Roe. For the story of how the Senate handles such nominations, see From 98 to 0 to Party Lines, a Timeline of Supreme Court Confirmations.

The best objection

Here is the strongest argument against all of this, and it is a fair one. It says: conservatives should not want a Court of reliable partisans. A judge who votes the party line is no better than a legislator in a robe. Gorsuch's opinion in Bostock, which read the word "sex" in Title VII to cover discrimination because of sexual orientation or transgender status, disappointed many conservatives, and he wrote it on the strength of the text. If the Court's job is to apply the law as written, then a justice who sometimes rules against your side is not a failure. He is the system working.

I agree with most of that, and I want to be careful. The standard I used above, did the justice apply a restrained, text-based approach, is the conservative standard. A justice who follows the text and arrives at an outcome I dislike has passed my test. A justice who reaches outcomes I like by inventing rights has failed it. Souter and Blackmun are in the second group because, in my view, they found things in the Constitution that the text does not contain. Gorsuch is in the first because he followed the words wherever they went. Our explainer on Originalism Explained for People Who Skipped Law School sets out the method, and The Living Constitution Sounds Reasonable Until You Ask Who Gets to Update It makes the case against the alternative.

What the scorecard teaches

1. Party is not philosophy. Eisenhower, Nixon, Ford and Bush 41 all picked justices who surprised their supporters. A Republican label on the appointing President guaranteed nothing.
2. A record beats a promise. The successes since 1986 are mostly people with long public paper trails: Scalia, Alito, Gorsuch. The disappointments are mostly people chosen for their blank slates.
3. The base has a role. The Bork loss and the Miers revolt both show that nominees live or die on the support of an organized public. Letters, calls and votes matter.
4. Elections have consequences, slowly. From the Eisenhower years to Dobbs was sixty-nine years. A nominee confirmed at 50 can sit for thirty-five. Patience is part of the job.

The bottom line

• Of 20 Republican-nominated justices from Eisenhower through Trump's first term, I count 8 reliably conservative, 5 who moved left, 5 swing or mixed, and 2 brief or too new to judge. Five of the seven votes in Roe and eight of nine justices in Casey were Republican appointees.
• The cure was vetting for judicial philosophy: a public record, a published list, and a network that reads the opinions. A party label is not a vetting process.
• Do not demand that a justice vote with your side. Demand that he follow the text. Gorsuch's Bostock opinion is the proof that the standard works.
• When a President announces a nominee, read three of the nominee's opinions before you read a single headline. They are free on the court's website.
• Call your senators on every judicial nomination, and ask what the nominee has written. Then vote in the elections that fill the seats.