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A Supreme rationalization
Last week George W. Bush became the fourth candidate to win the presidency despite losing the popular vote. Let's hope, for the sake of the American People politicians care oh-so-deeply for, he joins William Henry Harrison, Zachary Taylor, and Jimmy Carter as the only presidents not to nominate at least one justice to the U.S. Supreme Court.
The odds are long. The impeached Andrew Johnson got to nominate a justice. So did the assassinated James Garfield. Hell, even White House wallflower Millard Fillmore convinced the Senate to sign off on Benjamin Curtis (although he wasn't so lucky with Edward Bradford, George Badger, and William Micou). So chances are, our dim-witted President-Elect will nominate at least one -- possibly more, when you consider that three of our current crop are 70+ years old.
This is weighty responsibility for a guy who can't even read a Supreme Court opinion, let alone interpret one. After all, Roe v. Wade hangs in the balance. His choices to don the black robes could well be the greatest legacy in his four years in office.
I would prefer Al Gore nominate the replacements for Justices John Paul Stevens (80), William Rehnquist (76), and Sandra Day O'Connor (70), should replacements be necessary. But if Shrub is obliged to make the choices, history suggests it won't necessarily be such a bad thing (I know, I know. I'm just trying to be optimistic, OK?).
You think I'm nuts, I'm sure. So, to prove my sanity, we'll take a closer look:
Of the nine sitting justices, seven were nominated by Republican presidents. Only three of those seven are dyed-in-the-wool conservatives: Chief Justice Rehnquist and Justices Antonin Scalia and Clarence Thomas. Justices Anthony Kennedy (who filled the seat President Reagan hoped to give to the odious Robert Bork) and O'Connor are moderate righties and therefore swing votes. The other two, Stevens and Justice David Souter, now vote with the left more often than not.
Stevens was nominated by Gerald Ford; Souter, by the father of our President-Elect. Cross the simple-minded Gerald Ford with the blandly evil George Herbert Walker Bush, and what do you come up with? Dick Cheney's running mate!
All joking aside, even when conditions are favorable, and the Senate is sure to approve whomever is nominated, the president is never certain that his nominee will represent his ideology.
Remember Justice Harry Blackmun, the liberal who retired in 1994? Remember how we were shaking in our boots that he might not live to see another Democratic president? That same Harry Blackmun was nominated to the Supreme Court by -- mirabile dictu -- Richard M. Nixon.
And when Blackmun gave up his seat, whom did President Clinton name to replace him? Left-leaning Bruce Babbitt? Liberal New York Governor Mario Cuomo? No. Bland, middle-of-the-road Stephen Breyer (What's that you say? You wouldn't know Stephen Breyer from Ben & Jerry? That's OK; neither did Katherine Harris's attorney).
Clinton, you see, was more interested in nominating a consensus candidate, a least-common-denominator choice that everyone could agree on, than an outspoken liberal to balance the right-leaning scales of justice. He picked his battles, and the Supreme Court was not one of them.
Nominating a Supreme Court Justice is a tricky business. All justices are subjected to meticulous background checks and must be approved by the Senate, a Senate which is more often than not opposed politically to the president.
Dr. George Watson, a professor of political science at Arizona State University and co-author of Shaping America: The Politics of Supreme Court Appointments, explains:
"The nomination setting is defined by four variables, namely, party split in the Senate, Senate support of presidential positions, presidential popularity in the public, and vacancy attributes…
"For the president, more favorable settings permit greater latitude in selecting a nominee because the conditions for confirmation are better. Less favorable settings hold more potential for controversy and potential defeat of a nominee if care is not taken in finding a nominee acceptable to one's political opposition."
Take the aforementioned Millard Fillmore. His first appointment, Benjamin Curtis, was approved quickly by the Senate, in December of 1851. A year later, when Justice John McKinley needed to be replaced, the Senate was not as conciliatory. Fillmore nominated three different judges to the Court, and none of them were accepted. McKinley was not replaced until 1853, by a nominee of Fillmore's successor, President Franklin Pierce.
What prompted the Senate, which had so alacritously approved Curtis, to stand firm on nominees Bradford, Badger, and Micou? In 1851, the nation was still mourning the untimely death of President Zachary Taylor the previous year. The Senators, ever slaves to public opinion, decided it would be best for the American People if the nomination process went smoothly. Also, there were more of Fillmore's Whigs on the Hill than rival Republicans. Fillmore, in other words, was operating under a favorable nomination setting.
By 1852, the climate had changed. The composition of the Senate was different, and it was obvious the Fillmore's term of office would end the next year. Thus, the Senate preferred to delay approving any of his three subsequent nominees rather than succumb to his wishes.
"Presidents who ignore the setting," Watson writes, "do so at their peril. Reagan could have placed both Bork and Scalia on the Court if he had nominated them in reverse order. The setting for the Scalia nomination was quite favorable. Had he gone forward with Bork at that time, confirmation was virtually assured. Scalia, on the other hand, was a strong nominee for difficult times, like the setting that actually existed when Bork was nominated."
Presidents with strong ideological beliefs, Watson says, tend to pick justices with strong ideological beliefs. Reagan, a noted ideologue, is directly responsible for the Court's current list to starboard. It was Reagan who made Rehnquist Chief Justice. It was Reagan who appointed O'Connor and Kennedy and nominated Bork. And it was Reagan who gave us Antonin Scalia.
Reagan's veep and the proud papa of our President-Elect screwed up both of his appointments. From the Republican perspective, David Souter is a lousy justice because he has strayed from party lines. From anyone's perspective, Clarence Thomas was an abominable choice. The American Bar Association gave him a "qualified" rating, which, if the ABA were evaluating hotel chains, is how they would rate a Motel 6. The NAACP, the Congressional Black Caucus, most feminists groups, Anita Hill, and 47 U.S. Senators opposed his nomination. Worst of all, he's only a youthful 51, so he'll be around for years to come. That he votes Republican is but small consolation.
If his father is his primary advisor, and his father chose unwisely, it stands to reason that our President-Elect -- who is, point blank, not as smart as his old man -- will also choose unwisely. If we can depend on anything in Washington, we can depend on Dubya mucking up, right? One more Souter in a black robe and it's Gore taking the oath of office next month (although I must confess a certain dread that in 2004, President Rodham will be sworn in by Chief Justice Scalia).
Meanwhile, let's pray John Paul Stevens takes his herbal supplements.
By Greg Olear
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