Politics Count, Not Excellence

As all eyes turn to the Supreme Court to see if Justice William H. Rehnquist or Justice Sandra Day O’Connor will step down, the issue of politicization is on all minds -- and everyone who doesn’t still believe in the Tooth Fairy knows the real issue is abortion.

Kate Michelman, president of NARAL Pro-Choice America, warns that any potential justice “must commit to upholding Roe.” James Bopp Jr., general counsel of the National Right to Life Committee, fires back that abortion advocates “want to politicize the judiciary” by lobbying against Supreme Court nominees who might vote to reverse the Roe decision.

Both sides in this potential judicial confirmation battle disclaim any naked political motivation. Michelman says her forces are simply concerned with defending “what’s at stake for American women,” while Bopp rallies his troops to repel “the destruction of an independent judiciary.”

These are equally disingenuous statements.

There’s nothing new about politics in Supreme Court nominations. Politics and the nominee’s positions on issues of the day have always dominated the selection of justices.

Those with short memories date the intrusion of politics into this process to 1987, when the Democratic Senate rejected President Reagan’s nomination of Robert Bork. But the first victim of “Borking” was John Rutledge, who served briefly as chief justice in 1795 under a “recess” appointment by President Washington. The Senate rejected his permanent confirmation after Rutledge denounced the commercial treaty his predecessor, John Jay, had negotiated with England. Rutledge, in fact, became the first of 25 Supreme Court nominees who failed to gain Senate approval.

The Senate rejected in 1930 the nomination of John J. Parker, a highly respected federal appellate judge. Parker had been the GOP candidate for governor of North Carolina and claimed that blacks were not qualified to vote. Civil rights groups responded with an effective campaign against his confirmation.

Even Supreme Court nominees who survived the Senate gantlet faced political attacks. The best example is Louis Brandeis, named to the court by President Wilson in 1916. Brandeis was known as “the people’s lawyer” for defending women and consumers. Six former American Bar Assn. presidents signed a statement that Brandeis was unfit to serve, but he was confirmed by Senate Democrats on a party-line vote despite a strong whiff of anti-Semitism against the first Jewish justice.

The point of these stories is that politics, not competence, has been the primary factor in almost every Supreme Court nomination over the last two centuries.