Supreme Ambition, or Absence Thereof, and ACB

Writing on the Volokh Conspiracy, Josh Blackman expressed his admiration for Judge Amy Coney Barrett's modesty, in particular her acknowledgement that "I am not the only person who could do this job, but I was asked. And it would be difficult for anyone. So why should I say someone else should do the difficulty if the difficulty is the only reason to say no." To Blackman, Judge Coney Barrett's response stands in commendable contrast to others whose ambition "fermented through a lifetime of social-climbing" and who "scratched and clawed for years to put themselves in a position to be nominated."

Perhaps Josh is right that Judge Coney Barrett "didn't have to audition." I do not know enough about her, or the Trump administration's process, to agree or disagree. But then Blackman says this, which seems completely unsupportable:

On the Roberts Court today, the Justices who wanted the job the most are more likely to bend and sway in response to social pressures. The Justices who wanted it the least are most likely to stand resolute.

How could Blackman possibly know which justices wanted the job more or less? And why would earlier ambition make any difference to a justice who already has life tenure? What does it mean to "stand resolute," especially if that involves sticking to previous positions rather than being open minded? And finally, how could anyone distinguish between bending to social pressures and recognizing changed circumstances? Presidents, after all, have in recent years made SCOTUS appointments for political reasons, so standing "resolute" would not seem to be much a virtue in a jurist.

It does appear obvious that Blackman had Chief Justice Roberts in mind as the justice most likely to "bend and sway," as well as the one whose ambition, however modestly expressed, manifested itself early on. As we know from Joan Biskupic's recent biography, the teenage John Roberts applied to a private high school, saying "I won't be content to get a good job by getting a good education. I want to get the best job by getting the best education." And of course, conservatives have angrily reviled Roberts for voting independently on the Obamacare and Census cases.

But is ambition really the explanation for Roberts's independence (or swaying, as Blackman would put it)? Brett Kavanaugh certainly seems to have been every bit as ambitious as Roberts, judging from his confirmation hearing. He repeatedly volunteered his youthful achievements, unbidden by the questioning. He told Senator Leahy:

I busted my butt in academics. I always tried to do the best I could. As I recall, I finished one in the class, first in -- you know -- freshman and junior year, right at the top. . . . I was captain of the varsity basketball team. I was wide receiver and defensive back on the football team. I ran track in the spring of '82 to try o get faster. I did my service projects at the school.

And in answer to Senator Whitehouse:

I was at the top of my class academically, busted my butt in school. Captain of the varsity basketball team. Got in Yale College . . . got into Yale Law School. Worked my tail off.

And to Senator Hirono:

I got into Yale Law School. That's the number one law school in the country. I had no connections there. I got there by busting my tail in college.

Justice Kavanaugh may be resolute by Blackman's metric, but it would be hard to call him modest.

And what of Justice Gorsuch? He seems to have been equally as ambitious as Justice Kavanaugh, and yet he might be said to have swayed "in response to social pressure" by voting to extend Title VII protection to gay and transgender people.

It is always tempting to see multiple virtues in those whom we admire, but the ambition versus resoluteness test does not seem to hold up. More could be said about the real or imagined ambitions of Justices Thomas, Alito, Kagan, Breyer, and Sotomayor, but I think that is enough for now.

Comments

[Josh K]

I know Josh and it is my opinion that he is sincere in his beliefs on Judge Barrett. That said, this is an example of assuming the best in those we want see in positions of power and thinking the worst of those we don’t. Barrett’s earlier criticism of the Chief Justice yielding to political pressures is a case in point. Chief Justice Roberts, in his role in the Affordable Health Care Act decision, likely followed in the mantra of Chief Justice Stone who insisted that he was not a New Dealer, but rather found little constitutionally at fault with various aspects of the New Deal. In an era where reasonable people ought to try depoliticizing the Court, particularly in the absence of the President, candidates, and majority of the Senate doing so we ought to at least try to engage in a de-politicization effort. I won’t accuse Josh of politicizing the process in any intentional way, but his type of observation then inevitably leads to counterpoints (valid or otherwise) that do politicize the judiciary.
Of course, it is, I believe, helpful to observe that the nominee has a family and has adopted children; that plays a musical instrument…. All of those matters that Senator Cruz brought up. And this is all about a valid humanizing process. So too is it fine to point out that like all of the president’s nominees, she was born into privilege. (This was a distasteful part of Kavanaugh’s statement about working hard… it was an unfortunate display of self-entitlement, not to have acknowledged that he was born on the ten yard line with friendly referees in a home-town stadium).

[Steve L.]

Thanks, Josh K. I have never doubted Josh B's sincerity or acuity, but I do question whether standing "resolute" should be considered a judicial virtue. ACB's own confirmation strategy -- which she shares with exactly every single recent nominee -- has been to stress her open-mindedness with no agenda, which is pretty much the opposite of resoluteness.

[A non]

Isn't it an example of resoluteness to consistently stress (feign) open-mindedness?

Was RBG resolute in refusing to hand over power to someone younger and healthier in order to maintain her bony personal grip on power? When, moreover, your entire theory of interpretation endeavors to systematically misrepresent empirical claims and to engage in mystification efforts (in order to advance your politics of the moment), is your resoluteness a virtue or a vice?

When Biden tells us not to criticize the candidate on the basis of her religion, is that resoluteness (commitment to a ludicrous political ideology of burying one's head in the sand), and, if so, is it a virtue or a vice? And whose say-so counts here?

[Who me?]

The idea that anyone gets to the absolute top of their profession--and let's face it, that describes all federal appellate court judges, not just S. Ct. Justices--without HUGE (or even YUGE) ambition is ridiculous. I'll accept that she's better at performative modesty than Kavanaugh, but is that because she's less ambitious or because 40 odd years of living as a woman in America have taught her the importance of veiling that ambition? The question answers itself.

[anon]

Who me, it seems to this observer that there is plenty of unveiled ambition demonstrated by women. Hillary Clinton. Nuff said. And, dare one say about a saint? RBG.

As for the muddled post above, what is the point? Resolute, not resolute, wavering, not wavering, modest, immodest: what the h... are you talking about?

The problem with the "left" is that it thinks that "empathy" is a rule of constitutional construction, or a judicial philosophy. Accordingly, it searches for emotion, rather than attributes associated with judicial expertise.

"Empathy" has exactly NOTHING to do with constitutional adjudication. If you are voting in a case because you identify with and "feel for" one of the parties, you are a danger, not a hero.

[Ediberto Roman]

Well done, Steve. You killed it when you observed: "How could Blackman possibly know which justices wanted the job more or less?" Just fantastic---okay, write something that annoys me---I am starting to sound like a groupie!!

[Fair Cases]

"It is always tempting to see multiple virtues in those whom we admire, but the ambition versus resoluteness test does not seem to hold up. More could be said about the real or imagined ambitions of Justices Thomas, Alito, Kagan, Breyer, and Sotomayor, but I think that is enough for now." ..Nice.

[Kristina]

I am a graduate of Notre Dame Law School. Amy Coney Barrett was groomed for this from day one. To claim surprise & feign modesty for her nomination after the zealous advocacy she has received over the years from the Federalist Society is disingenuous & misleading at best, and patently false when viewed in a less generous light. I don’t begrudge her ambition, but I do not appreciate the revisionist history of her career path & the downplaying of the influence of the powerful persons who helped her get here.

[anon]

When did Barrett say that she wasn't ambitious, or that she wasn't aiming to get as far as she could, or that she wasn't intending to climb the judicial ranks to SCOTUS?

When did RBG say that?

Lubet's point seems to be that this talk about "ambition" -- and "wanting it" more or less -- is truly bs.

If that's Lubet's point, I agree.

It is truly delicious to see how low the left stoops to try to come up with SOMETHING, ANYTHING. What a mean-spirited, ungenerous bunch.

Queue: Self righteous lecture on women and the law, and how hard it is for women to succeed. Oh wait, she's not a leftist = who thinks that "empathy" -- that is, her personal emotions -- is a basis constitutional interpretation. Or, in Obama's formulation, 20% "heart."

Therefore, she is subject to the hysterical smearing and fear mongering that the left is now so known for.