Once Upon a Time Supreme Court Nominations Were the President’s Choice
By Steffen Schmidt
Once upon a time in a land far, far away kings could nominate their choices for appointments to the Supreme Court of Justice of the Land and the Knights of the Round Table would confirm them even without the nominee even showing up for a public hearing.
Then things changed in the land of milk and honey. Tempers flared and nastiness spread through the provinces as angry warlords took over the Round Table. They decided to torture these appointees in public beatings.
They humiliated and destroyed the reputations of nominees since they had the power to stop the King from having his way, never mind that the King represented the executive power of which the Courts were a fundamental part.
I am of course referring the fairy tale of United States Supreme Court vacancies, appointments, and their confirmation.
I’ve written bout this before but let me remind you what’s happened.
The ancient philosophy of governance in the United States was that, once elected, Presidents had the mandate of the people and should be able to bring to government like-minded advisors and judges, representing the temperament and philosophy that the voters had approved in their election of the President.
Then things began to change and the “Senatorial courtesy” of past decades deteriorated into partisan grandstanding with the party opposed to the President blocking his choices.
Of course, the Senate has a Constitutional obligation of telling the President when an appointment to the highest court (or to the federal bench in general) seems unacceptable. But here are a couple of troubling examples.
Justice Lewis Powell was a moderate member of the Supreme Court. He retired on June 27, 1987, and Senate Democrats had “ … asked liberal leaders to form ‘a solid phalanx’ to oppose whomever President Ronald Reagan nominated to replace him, assuming it would tilt the court rightward; Democrats warned Reagan there would be a fight.” Notice that this was before Reagan had even selected his choice. Democrats were determined to oppose whomever Reagan chose.
Reagan nominated the brilliant but very conservative Robert Bork. Bork believed in “strict constructionist” or “original intent” as the best philosophy for a justice. This principle says that judges should try looking strictly at what the Constitution says and not be activist and not “make up” judicial practices.
Massachusetts Senator Ted Kennedy went on national television with a fiery speech opposing Bork. He said:
“Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, … President Reagan is still our president. But he should not be able to … impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.”
So Senator Kennedy, how do you REALLY feel about Mr. Bork!
George Bush also had problems with Supreme Court nominees. In 2005 he announced that he would nominate Harriet Miers to replace Justice Sandra Day O'Connor who was retiring from the Court. Americans for Better Justice, ran an ad campaign, a petition drive and an e-mail campaign asking Bush to withdraw and the Senate to oppose her nomination. Bush withdrew her name rather than face a brutal confirmation process.
Although President Clinton’s two nominees, Ruth Bader Ginsburg and Stephen Breyer, received careful and sometimes searing scrutiny from Republicans they were easily confirmed (Ginsburg by a Senate vote of 96 to 3 and Breyer 87 to 9).
So now we face an upcoming vacancy in the highest court as Justice John Paul Stevens retires. Stevens was appointed in 1975 by Republican President Gerald Ford to replace William O. Douglas and is considered one of the four Liberals on the Court. We have already seen the sharks swimming in these confirmation waters. Liberals are demanding that President Obama appoint a very liberal justice. Conservatives and Republicans would love to knock off Stevens Liberal voting with a conservative, thereby swinging the Supreme Court definitively from a 5 to 4 vote to a 6 to 3 Conservative tilt.
Protestants are also insisting that Sevens be replaced with another Protestant since the court now has two Jewish members, six Catholics and only one Protestant, Stevens.
Women’s groups would like to see another woman on the court since only two of nine are female in a country where women are more than the majority of the population.
So, watch the “Dance of the Supreme Court Nomination” unfold over the next few months. It’s an interesting lesson of how politicized American politics really has been for quite a while.
Steffen Schmidt is a University Professor of Political Science at Iowa State University. He provides weekly political analysis for Iowa Public Radio, and periodically in Spanish for CNN en Español. He also serves as chief political and foreign correspondent for InsiderIowa.com.