In article after article, I’ve seen democrats, liberals, and lefties (disclosure: I’m a democrat liberal lefty myself) complain about how unprecedented it is for presidents to be so carefully handpicking their nominations for Justice of the Supreme Court. Various editorials have bemoaned the days when justices were picked solely on their credentials, and when they would surprise or outright contradict the desires of the very president who appointed them.
Frankly, the whole thing reeks of hooey.
I find it tremendously hard to believe that any politician, from the 18th century to the 21st, would appoint someone to the most powerful court of the land without at least considering his political views, and the idea that Bush (or Clinton or Bush I, depending on who you ask) was the first president unethical enough to pick a patsy for a justice in 200 years of history strikes me as absurd.
So how about it? Is the furor over the Supreme Court over the past 5-20 years truly unprecedented? Or is it, as I suspect, just people idealizing the past to help demonize their political opponents?
The only one that didn’t was Jimmy Carter, who has the distinction of being the only full term president never to nominate a Supreme Court justice. Otherwise, yeah both sides do it. They put a fig leaf on it and call it devotion to strict constructionalism or calling the constitution a living document, but all presidents make politics a consideration if not the primary consideration.
I’m not really sure that’s true. Yes, some Presidents before, say, Reagan tried to “stack the court” (FDR and Nixon come to mind). But a lot of Presidents before then also simply appointed competent (or supposedly competent) people to the bench. Ideology wasn’t as big of a deal, really (or it wasn’t close to being as big of a deal as it is today). The political leanings of SC justices became an issue when the Warren Court was perceived as simply ignoring the law and using its authority to write new laws with which the majority of the nation disagreed. Once courts started being more activist, there was a lot of call from the conservative grassroots to make sure that Presidents considered a nominee’s political leanings before he/she was appointed.
And I do realize that the SC in other eras had an ideological bent that dismayed some in the public (notably in the late nineteenth and early twentieth century). However, I don’t recall ideological issues being all that important during the confirmation process of that time. Someone with more knowledge of this era, please feel free to correct me.
John Marshall was appointed to the court by John Adams primarily because of his Federalist leanings. That had pretty significant effects on the history of the United States.
So basically yeah, this has always been done. I think there were Presidencies where it wasn’t done to the same degree. Back when communication was slower it was also possible for a vacant spot to have a nomination/confirmation before some parts of the country even heard about it.
Modern-day presidents are amateurs when it comes to judicial appointments. The heyday of partisan judging was in the 1790’s, when SC Justice Samuel Chase (when SC justices doubled as trial judges) regularly and proudly delivered partisan harangues from the federal bench. John Marshall never pretended to be anything other than a dyed-in-the-wool Federalist, and was appointed Chief Justice by John Adams for exactly that reason.
In 1877, when Congress wanted the Supreme Court to arbitrate a disputed presidential election, the judges were so partisan as to nearly sink the plan. There were only two Democrats on the Court (one had been appointed by Lincoln, in a rare gesture of wartime bipartisanship). One Justice out of nine was considered impartial, so Congress tried to pair him with two Democrats and two Republicans, but he resigned to take a Senate seat. They had to replace him with a third Republican, and all five judges voted along party lines, as expected.
With respect to more recent appointments, my qualified jurist is your raving ideologue. It’s true that many justices diverged from the ideology of the President who appointed them—Warren, Brennan, White, Blackmun, Souter. That just means that the Presidents failed to imprint their ideology on the bench, not that they weren’t trying. Clinton and Bush 43 seem to have been more successful in that regard.
I think the furor really erupted with the appointment of Clarence Thomas, a man who was so obviously lacking a Supreme Court resume and at the same time a virtual clone of Antonin Scalia the most conservative of the justices then sitting. Not coincidentally the president was looking for conservative justices and the topper was Thomas was black and espousing conservative views which made it seem to some (well, to me anyway) as if his reasoning had to be defunct. There had been many other Supreme Court furors in the past, notably FDR’s attempt to “pack” the court by increasing the number of justices from 9 to 15, but the Thomas appointment, a Catholic by the way, seemed deliberatley intended to pave the way for overriding one particular SC decision which is obviously a no-no to the party that is not in power. After that appointment everyone is a little more skeptical.
If you want a president who did not delve deeply into the beliefs of his appointees try Eisenhower who appointed a one-time law and order Attorney General ]from Califonia to the Court who ultimately became a lightning rod and “the biggest mistake I ever made as President” when he led the court in giving defendants rights thhat a lot of the public did not believe they should have. Surprise! A justice who saw a wrong and corrected it.
How was Clarence Thomas lacking a Supreme Court resume? And how was he a Scalia “clone”? Thomas had a good background in the executive branch and a few years on the bench. He was as qualified – or more qualified – than many justices that have served. As for being a Scalia clone, anyone who has read Thomas’s pre-Supreme Court writings can see that his view on the law (a natural law theory) is much different than Scalia’s views (who rejects natural law). Yes, they often come to the same conclusion, but to call Thomas a Scalia clone is simply inaccurate (especially given the current research on the SC which proves that Thomas has influenced Scalia’s decisions far more than Scalia has influenced Thomas).
Here is some more detail. Thomas is supposed to be an “originalist” as opposed to Scalia who is a “textualist.” I guess you are right then when you say he is not a Scalia clone, it merely seems to mean that he votes in almost every case, the same way as Scalia., the dominant difference between the two being that Thomas does not believe in “stare decisis” the guiding principle in deciding nearly every Supreme Court case. This is of course interesting because when being questioned on his background and qualifications etc. he stated that he had not formed an opinion on the Roe v. Wade case that basically legalized abortion in this country. A practicing Catholic jurist sitting on the D.C. Court of Appeals with no opinion on that landmark case, but further, one who does not believe in stare decisis, meaning if a case of a similar type should come before him he will feel free to vote to overturn Roe v. Wade as being wrongly decided. This is not your traditional Supreme Court candidate.
As for his academic and career qualifications I know nothing about where he went to school, class rank or law review status but I do know that the American Bar Association, which has historically pronounced nearly every candidate for the court as being “well qualified” divided its vote on Thomas between “well qualified” and “not qualified.”
As for his legal career he has zero experience as a sitting judge in a court other than one year on the D.C. Court of Appeals where he sat as a Bush appointee just prior to being appointed to the U.S. Supreme Court. That’s correct. One year. His prior experience consisted of working for John Danforth as an assistant attorney general in the state of Missouri for 3 years followed by a year or 2 of private practice, then again working as a legal assistant for 2 years under Danforth in Washington. This was followed by 1 year as assistant secretary of education for civil rights in the department of education and 8 years as the chairman of the EEOC. Hardly the resume of a Supreme Court justice. Virtually no experience as a sitting judge, no notable written works, no teaching experience, no major written decisions and very little practical experience as an attorney. Now he may make a very fine head of the EEOC, though I doubt it given his “pick yourself up by your own bootstraps” philosophy and his opposition to affirmative action, but he is by no means qualified to be a supreme court justice.
well, I don’t know if you are directing those two questions at me, but the fact is that both of those men had prior experience serving as law clerk to supreme court justices before leaving to go into prive practice. some say that such experience is the very best experience a lawyer can get.
however, i am certainly not going to defend placing rehnquist on the court, his actions there or even the decision to nominate him. and in any case he ought not to have been approved but he was by a resounding majority.
As for White, he was an all-american for god’s sake. (in any case he also authored nearly a thousand opinions while on the court, all of them his own work.) let’s see if thomas gets through a third of that amount.
There have been nominations that didn’t make it. It depends on the political differences between the executive and congressional branches. Why beg your own question? Just check out a history book from your local library.
In my opinion, this supports the claim that neither man is really following legal principles to a conclusion. Instead they start with the conclusion they would like to reach and then go back and find a path that leads them there.
Not necessarily. These theories may not necessarily conflict in certain case areas, which would mean they would reach the same conclusion by honest deliberation anyway. Besides, they are constrained by case law much of the time.
Indeed, many Supreme Court decisions are unanimous or nearly so, and we know that Scalia and Ginsburg have very different theories on the law.
dennis, you are correct about Thomas’s career, but so what? As others have pointed out, there have been quite a few justices who had little judicial experience and who were nominated. Earl Warren, for one. So don’t try to assert that Thomas was “unqualified” for the Court. There are a variety of different backgrounds that makes one qualified for the Court. Thomas had a perfectly reasonable background for a Justice.
Do yourself a favor and pick up Supreme Conflict, the recently published book about the recent Supreme Court. In that, author Jan Greenburg details how from his very first cast Thomas has staked out positions that have repeatedly won over his fellow jusitices and has been very influential in the writing of decisions. I know this blows away the trendy thought that Thomas is a token, an idiot, and a clone of Scalia, but you might find it useful nonetheless.
