The Volokh Conspiracy
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Vice President Vance Will Look For SCOTUS Nominees With "Real Courage" Who Have "Stood Up To The Crowd"
Vance mentions Justices Thomas and Alito as exhibiting this courage, but none of the Trump appointees.
Over the years, I have written at length about judicial courage. And I'm not alone. Both President Donald Trump and Vice President Kamala Harris have cited this virtue. Now, Vice President J.D. Vance has done the same.
Hugh Hewitt interviewed Vance about what he would look for in a Supreme Court nominee. Vance replies that a Justice should have demonstrated "real courage" by standing up to the crowd. Critically, they must identify a time in which they faced that sort of pressure, and did not back down. It is not enough to talk the talk; you have to walk the walk.
HH: "I know Vice President Pence, when he was serving in your office, he had the last interview with every Supreme Court nominee potential. And if you are in that position down the road, what do you want to know about a Supreme Court nominee?
[Vance:] Oh, that's a good question. I've never been asked that question, Hugh. You always ask the best questions, man. But, you know, I guess what I would try to understand is how persuadable they are by the mob. Because what we've learned from our Supreme Court over the last 10, 15 years, but especially over the last few years, is that the mob really comes after these guys for high-profile decisions. And obviously, you don't want to prejudge an outcome, but I just want a person with real courage. I think this is what makes Alito and Thomas so special, is that they're just willing to stand in defiance of a lot of incredible media and social pressure. I mean, if you're in the Supreme Court, you are literally inside the beltway. You consume beltway media. That's who you see day to day. You have to have a particular special character. And so I guess I'd ask some questions that try to tease that out a little bit. I'd ask them, you know, when have they ever stood up to the crowd? When have they ever, you know, had people attack them for their views? And if they've never, ever had to stand up to public pressure, they're probably not the right person for the Supreme Court."
Vice President Vance is 100% correct. It is telling that Vance did not identify any of the Trump appointees as demonstrating judicial courage.
I would also point to Judge Ho's recent interview in the Wall Street Journal. Ho explains that judges cannot fear being booed:
Without naming names, Judge Ho complains about "fair-weather originalists" on the bench: "If you're only an originalist when it leads to the results you want to reach, then you're not really doing originalism at all." Even when judges want to follow the law, they may face temptations to do otherwise. "It's been said that judges are like umpires and referees," Judge Ho says, alluding to Chief Justice John Roberts's 2005 confirmation hearing, in which he promised to "remember that it's my job to call balls and strikes."
Judge Ho doesn't find that metaphor comforting. He says actual umpires tend to be biased in favor of the home team. He refers me to a 2011 book, "Scorecasting: The Hidden Influences Behind How Sports Are Played and Games Are Won." The authors note that home teams have an edge in every major sport and argue, as Judge Ho summarizes it, "that the leading cause of home-field advantage is the referees, and it's because the referees are worried about the booing of the crowd." I read the chapter and found the evidence credible. The home crowd in Judge Ho's analogy isn't the spectators in the courtroom but "cultural elites," who cheer as well as boo.
Ho connects this theme with the Chief Justice's ongoing whirlwind tour to save the Republic. A group of elite New York lawyers give Roberts a round of applause, so he obviously thinks he is on the right side of the issue. But in reality, the crowd is just working the refs.
Five days after I interviewed Judge Ho, Chief Justice Roberts spoke at an anniversary celebration for the U.S. District Court in Buffalo, N.Y. He said the judiciary's role is "to obviously decide cases but in the course of that to check the excesses of Congress or the executive, and that does require a degree of independence."
"At that," the New York Times reported, "the crowd applauded."
"In sports there's a term for this, right?" Judge Ho says. "It's known as 'working the refs.' And this is a phenomenon that I've seen affect judges throughout my career."
I am currently working on essay about the Chief's role in causing our current morass. Stay tuned.
