History has made it clear that picking an ideological sure thing in a Supreme Court nominee is like choosing a Triple Crown winner in horseracing. You pay your money and you take your chances.
That’s what George W. Bush faces as he weighs the various candidates to assume the seat now held by the retiring Associate Justice Sandra Day O’Connor, who was one of those who not only defied the odds for nomination and confirmation but proved to be far more moderate than her nominator, Ronald Reagan, expected. After all, hadn’t she been a public official in one of the most conservative states in the union, Arizona? Who would have thought she would vote as often with the liberal bloc as the conservative?
With hysterical special interests from both ends of the political spectrum ready to spend millions of dollars lobbying for and against whomever the president picks, the task of meeting all the requirements from the Right or Left and winning Senate approval becomes even more daunting and the candidates more unpredictable. In fact, recent examples have shown that those candidates with the cleanest slates and who are, therefore, the least predictable have the best chance of surviving what has become one of the Capitol’s most brutal and exhausting exercises.
It is a certainty that when Dwight D. Eisenhower selected Earl Warren to be chief justice of the United States, he didn’t expect the former California governor to preside over what became one of the most liberal courts in the nation’s history. Actually, many of the “conservative” Republicans selected for the federal bench generally by Eisenhower and his advisers set new marks for forward-looking decisions, especially in civil rights and governmental integrity. Among these were such luminaries as John Minor Wisdom, Frank Johnson, and John Sirica (who was as responsible as anyone for unraveling the Watergate scandal).
Liberals were shocked when John F. Kennedy’s selection for the court, the late Byron White, turned out to be among the most conservative court voices of the century. White had been Attorney General Robert F. Kennedy’s deputy and would have seemed to possess the “correct” ideological credentials. What was overlooked, however, was that White matched the underlying conservatism of the Kennedy clan fostered by Joseph P. who was a strong financial supporter of Sen. Joseph McCarthy and numerous conservative causes.
Reagan nominee Robert Bork, among the more qualified candidates for the post, failed to win confirmation because of an extensive record that liberal activists used to paint him as an extremist. The result was the nomination of Justice Anthony Kennedy, supposedly a conservative, who then became, along with O’Connor, one of the true moderates on the court. George H. W. Bush named Justice David H. Souter whose slate was so empty that it provided no ammunition whatsoever to potential opponents who were amazed when they discovered that he voted consistently with the liberal bloc.
In reality, the Supreme Court often has been a haven for mediocrity. Some of the most qualified and deserving of consideration have been passed over because of political and ideological reasons that have not served the nation well. Who can explain why the Wisdoms and Johnsons and Learned Hands of American jurisprudence on both the federal and state levels have been denied the opportunity of a place on the highest court. Eisenhower refused to consider Indiana Supreme Court Chief James A. Emmert, who Felix Frankfurter once said was the brightest man he had ever taught at Harvard, because Emmert supported his good friend Sen. Robert A. Taft Sr. for the 1952 Republican presidential nomination instead of Eisenhower.
Reagan’s decision to name a rather obscure state politician as the court’s first woman member turned out to be a stroke of genius that helped keep the court balanced for 24 years. Reagan clearly looked beyond O’Connor’s paper record. Whether or not he realized the extraordinary depth of character and judicial integrity of his nominee is immaterial. It is enough to say that he chose wisely.
It probably is too much to hope that President Bush can resist the mounting pressure from his own political base to make a sea change in the direction of the court and pick a candidate whose qualifications are more important than his or her philosophy. But even if he does go for the nominee whose compass seemingly points due east, he can never be certain that’s where every decision will head. Harry Truman was often appalled at the decisions of one of his nominees, the late Tom Clark. Few choices are ever dead-solid perfect.
(Dan K. Thomasson is former editor of the Scripps Howard News Service.)