Divided Government and Judicial Appointments

This is something I wrote in response to a Libertarian (fellow law school student) who believes that divided government is more effective:

An argument that has been made by Libertarian Republicans who are supporting Democrats in this election cycle has been that divided government creates a more fiscally sound economic policy. Regardless of the merits of this argument, it seems odd that Libertarian Republicans (especially lawyers) fail to see the effect that divided government has on Supreme Court nominations. The last four Supreme Court appointments have been made with both the executive branch and the senate being of the same party. Justices Breyer, Ginsburg, Alito, and Roberts are generally all considered supremely qualified Justices with great academic and professional accomplishments. Regardless of whether one is Conservative or Liberal, most constitutional scholars would say that these Justices possess the intellect and temperament to be on the Court. Now take Justices Soutar, Thomas, Kennedy, and Stevens. All four of these Justices were less qualified than the aforementioned candidates in terms of both academic and professional achievements and were mainly picked because they were thought (wrongly in Thomas' case) that they were palatable to both the opposing party controlling Senate and to the President’s party and would win easy confirmation. The one harbinger in this discussion is Justice Scalia as he enjoyed the ringing and very vocal endorsement of Mario Cuomo and was appointed at a time when Justice Rehnquist, who was considered controversial at the time, was being elevated to Chief Justice. In modern times, the main reason for this is the abortion issue as Republicans in a case of divided government (to a much lesser extent when they control the Senate and the Presidency) have to pick someone who has no paper trail on the issue personally or professionally (so an Alito or Roberts nomination is unlikely to happen). Although to a lesser extent, even a Democratic President likely would have to be cognizant of picking a Justice with a scant paper trail and have to forgo more distinguished candidates whose positions were more discernable (we haven’t seen a nomination recently with a Democratic President and a Republican controlled Senate). While I am personally pro-choice, I have no doubt that this issue primarily along with a few others effects the President's choice (especially when a Republican occupies the White House) of Supreme Court Justices when the Senate is controlled by an opposing party. The nomination turns less on qualifications and more on having a scant paper trail (so both pro-choicers and pro-lifers can read whatever they want into the nominee) and being considered less ideological. Regardless, of whether you are a Conservative or Liberal, divided government appears to lead to less distinguished Supreme Court Justice appointments.