Dwight D. Eisenhower called his Supreme Court appointments the “biggest damn fool mistake I ever made.” Richard Nixon unwittingly named the future liberal author of Roe v. Wade. George H.W. Bush’s choice now evokes a GOP grumble, “No more Souters!”
As President Bush mulls his first high court decision, he knows well that the notion of picking a Supreme Court justice is indeed risky business. He has to get the justice confirmed and then hope that his choice doesn’t disappoint him. Already, he’s being buffeted by all kinds of advice _ not just the institutional “advice and consent” role that the Founding Fathers carved out for the Senate.
Liberal groups are preparing to take aim at any staunchly conservative jurist. Conservative groups remember, with trepidation, that some of the court’s most liberal justices were picked by Republican presidents. The lesson is that justices are people and people can be unpredictable.
“There is a long history of those who didn’t turn out as expected,” said Tom Goldstein, a Washington lawyer who frequently argues before the high court. “It has something to do with their independence _ justices, once they’re appointed, answering to nobody but themselves.”
Bush plans to take material about Supreme Court prospects with him when he goes to Europe on Tuesday. “The legal team has been working on preparing material,” Dana Perino, the White House deputy press secretary, said Monday.
Both sides are drawing battle lines after Justice Sandra Day O’Connor _ a pivotal vote on abortion, the death penalty and affirmative action _ announced last week that she would retire upon Senate confirmation of her successor.
Liberal groups vow to fiercely contest nominees who seek to overturn the 1973 Roe decision affirming abortion rights, while some congressional Republicans were cautioning against any selection of Attorney General Alberto Gonzales, a close friend of Bush whom they believe isn’t steadfastly conservative.
Noting the first President Bush’s choice of David H. Souter, who has since become a consistent vote in the court’s liberal bloc, some conservatives have said “Gonzales is Spanish for Souter.” Gonzales has dismissed the criticism, saying it is the president’s opinion that matters.
Justices hold lifetime appointments and are charged with upholding the Constitution, a duty of political independence that requires them to strike down unlawful acts of Congress or the president. Still, there are legal gray areas that can bring cries of dismay from interest groups if justices don’t rule as anticipated.
Legal historians said several reasons explain why some nominees disappoint. Many were named despite a clear record of judicial philosophy or views on issues, perhaps because they were prized for factors such as gender, religious affiliation or political background.
The court’s internal dynamics also play a factor. Justices craft their opinions with an eye toward attracting at least a five-vote majority. If they adopt a hard-line position on principle, justices risk alienating colleagues and writing lonely dissents for years.
“Generally speaking, nominees who have evolved in unanticipated ways did not have federal court backgrounds,” said David Garrow, a Supreme Court historian at Emory University. “It’s a response to the pressures of Washington, with the Supreme Court presenting legal questions they did not have to confront before.”
They include Chief Justice Earl Warren and Justice William Brennan, two Eisenhower appointees who from the 1950s to the 1970s led the court in assaulting racial segregation and expanding individual rights against the government. Warren was a former Republican governor of California; Brennan, a New Jersey state court judge, was coveted partly as a Catholic.
Eisenhower later said the two were among his biggest presidential mistakes.
Other “disappointments,” according to historians, were Harry Blackmun, Nixon’s law-and-order choice who penned the landmark Roe v. Wade decision making abortion a constitutional right. He later opposed the death penalty. Souter’s primary previous experience was on state courts.
The Supreme Court currently splits 5-4 on polarizing social issues such as the death penalty, even though seven of the nine justices were named by Republican presidents. That’s because two of them _ Souter and John Paul Stevens, who was chosen by President Gerald Ford _ typically vote with the two Democratic appointees.
O’Connor, the first female justice, and Anthony Kennedy, President Reagan’s compromise choice after the doomed bid of strong conservative Robert Bork, also have drifted left in recent years, making the conservative majority a fragile one.
Arthur Hellman, a constitutional law expert at the University of Pittsburgh, said he believes O’Connor might have been partly pushed away by the fiery conservative rhetoric of Justice Antonin Scalia, whom the president has cited as the justice he most admires.
A new justice in the strident Scalia mold might have the same moderating effect on Kennedy that Scalia had on O’Connor, Hellman said.
“I think you have a number of justices who, after serving some time on the court, say, ‘I like to be in the middle. I like to be in the balance,'” he said. “If you see an extreme on one side, you might recoil and it pushes you into the other camp.”
For Bush, the lessons of judicial nominees might mean he chooses a conservative with an extensive paper trail in federal court who won’t alienate his or her colleagues and who could also avoid a bruising confirmation battle.
It could also mean that Bush might have to balance the benefits of a historical first, such as the groundbreaking selection of a Hispanic justice, against a firm conservative ideology.
Still, that might not be enough. Speaking three months ago at a university in Towson, Md., O’Connor said perhaps only time could tell how a prospective justice turns out.
“I frankly do not know how anyone going on the court would be able to predict the thousands of issues that come before the court,” she said. “I myself couldn’t have told President Reagan what I would do on all these issues, because I hadn’t faced them.”
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