An Injudicious Trend

In 1932, the retirement of Justice Oliver Wendell Holmes Jr. gave President Hoover a vacancy to fill on the Supreme Court. The name of Benjamin N. Cardozo, chief judge of the highest court of New York, was suggested in legal circles. But Cardozo was a Democrat, Hoover a Republican. Cardozo was Jewish, and there was already a Jew on the court, Louis D. Brandeis. And there were already two New Yorkers, Harlan F. Stone and Chief Justice Charles Evans Hughes.

Hoover ignored the obstacles and appointed Cardozo, who was unanimously confirmed by the Senate.

That scenario seems like fairyland today. Political considerations have always played a part in the appointment process, but now they seem to dominate. Or, more accurately, ideological ones do. American politics have become far more ideological, and nowhere more intensely so than in filling vacancies on the Supreme Court.

Talk of possible vacancies is in the air now. Rumor has it that Chief Justice William Rehnquist and Justice Sandra Day O’Connor may go. And even before there is a vacancy, politicians and interest groups are staking out their demands.

The right-to-life movement is demanding that anyone nominated be committed against abortion, even to overruling Roe vs. Wade, the decision that a woman’s right to choose an abortion is protected by the Constitution. Other conservatives want a vote against affirmative action. Senate Democrats indicate that they will fight any extremist choice.

Why has the Supreme Court appointment process become so politicized?

Part of the answer lies with the court itself. In the last 50 years, the Supreme Court has made decisions that changed the direction of society -- for example, on racial segregation. And, not least, the decision that made George W. Bush president.

Many of the important cases were decided by narrow majorities; 5-4 in Bush vs. Gore and others. No one can fail to see that fundamental choices for the country depend on who is on the Supreme Court.

The other important factor has been the ideological transformation of the Republican Party to a hard-edged force that includes such elements as religious fundamentalists. The moderates who used to play a large role in the party are reduced to a small rump.

In President Eisenhower’s administration, the judicial appointment process -- which I saw close up as a reporter covering the Justice Department -- was largely non-ideological. Among Eisenhower’s Supreme Court nominees were moderate Republicans Earl Warren, John M. Harlan and Potter Stewart and one Democrat, William J. Brennan Jr.

Conservatives trace the change to the defeat of Judge Robert Bork after President Reagan nominated him in 1987. They say he was done in by liberal smears. Liberals, and the moderates who joined in the 58-42 Senate vote against Bork, said his views were too extreme. In Republican presidencies now, a careful operation vets the ideologies of possible nominees to all federal courts. The result is choices to please the right -- like Alabama Atty. Gen. William H. Pryor, nominated to the appeals court, who had argued in a brief that allowing sex between homosexuals would open the way for legalized “necrophilia, bestiality ... and even incest and pedophilia.”

Democrats are now filibustering against Bush nominees to lower court positions whom they deem extreme. Republicans denounce that tactic. But when Bill Clinton was president, they brazenly blocked many of his nominees who were undoubtedly centrist choices. One was Elena Kagan, nominated to the U.S. Court of Appeals, who was recently named dean of Harvard Law School.

The courts are too important to be treated with ideological zealotry. The great danger is that we Americans will come to think of judges as just another version of politicians. That would damage their essential function: to keep this country true to its Constitution.

Israeli Chief Justice Aharon Barak said recently that democracy would not work without a commitment to liberty that limited majority rule. We depend on the courts to preserve that liberty. We have to believe in their dedication to something deeper than political ideology.