US District Court Judge Douglas P. Woodlock, speaking to a Boston Bar Association dinner where he recently received an award, told of a conversation decades ago with another federal judge in Chicago who owed his appointment to then-mayor Richard J. Daley.
''What does Mayor Daley think of you as a judge?" Woodlock asked.
''He thinks I'm an ingrate, and I think that's the way it should be," the Chicago judge replied.
Woodlock approvingly observes that the history of the federal judiciary is filled with ingrates -- men and women (mostly men) who were appointed by a president thinking they would carry out his philosophy; but the judge then took the lifetime appointment seriously, or grew intellectually in office, and became a free spirit -- an ingrate. The tradition of a truly independent judiciary survives precisely because its appointees are not mere rubber stamps. Woodlock also worries that this independence sometimes leads judges to be too activist.
Interestingly enough, if you look at the history of the Supreme Court, far more justices who began as relative conservatives became more liberal the longer they served. Freed of political constraints, they evidently acquired more sympathy for underdogs, more compassion for those whom Justice Brandeis called ''despised minorities." They came to see the Constitution as protector of the powerless against the powerful.
In the Watergate affair, several justices appointed by Republicans joined Democratic-appointed justices to rule, 9-0, that the president was not above the law. Two of the greatest liberals of all, Earl Warren and William Brennan, were appointed by President Eisenhower, who was surely not seeking the activist court that resulted.
This trend of ingrate judges has been especially true of several 20th-century justices, beginning with the Warren Court, and it explains why the conservative movement has been so relentless in demanding that George W. Bush's nominees be hard-core, movement conservatives not at risk of turning into ''another Souter" or ''another Blackmun."
David Souter, appointed by George Bush I in 1990, voted mostly with the high court's conservatives during his first three years, but turned into one of the leading moderates. Harry Blackmun, appointed after two of Richard Nixon's appointees were refused confirmation, was derided as a Minneapolis crony of Chief Justice Warren Burger. They were nicknamed ''The Minnesota Twins." But Blackmun, who wrote Roe v. Wade, went on to become one of the great independent-minded justices. Even Sandra Day O'Connor, an Arizonan from the Goldwater wing of the Republican Party, did not turn out as expected.
With John Roberts and now Samuel Alito, the right is taking no chances. Though only in their early 50s, both men seem mature, reliable movement conservatives. The right went ballistic when Bush appointed Harriet Miers, who showed distressing signs of independent mindedness in her social views despite being a born-again evangelical Christian. She even had championed affirmative action and had once been soft on abortion. That Bush, whose one reliable virtue is usually personal loyalty, withdrew Miers so abruptly in favor of Alito suggests just how captive he is to the right.
If confirmed, is there any likelihood that Alito will turn into another of history's splendid ingrates? Not based on what we learned at the hearings. His views on executive power, on the limits of the commerce clause to allow federal regulation, his deference to police authority and to religion in public life, as well as his refusal to term Roe v. Wade ''settled law" on a par with Brown v. Board, all suggest that the right will get what it hoped for.
You never know. The courts, which Alexander Hamilton in Federalist 78 called ''the least dangerous branch," often work an alchemy on judges who serve them. In our system of separation of powers, Hamilton viewed courts as less ''dangerous" than the executive or legislature because courts had neither the legislative ''power of the purse" nor the executive power of ''the sword."
Of course, federal judges have one other power not enjoyed by presidents or legislators. They do not have to run for reelection. They are accountable only to their own consciences, the esteem of their peers, and their intellectual engagement with the Constitution and the cases before them.
As the right does its best to make the courts ideological captives, it gives this unreconstructed liberal some comfort to appreciate that more judges, given this privilege to rely just on conscience and intellect to interpret the law, evolve into liberal ingrates. It suggests the enduring tug of liberal ideals.
Robert Kuttner is co-editor of The American Prospect. This column originally appeared in The Boston Globe.
