Politics Behind High Court's Nominations

The Washington Times (Washington, DC), July 21, 2009 | Go to article overview
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Politics Behind High Court's Nominations


Byline: Gerald R. Rosen, SPECIAL TO THE WASHINGTON TIMES

In the 1970s, it was Clement Haynsworth; in the 1980s, it was Robert Bork; and in the 1990s, it was Clarence Thomas. Now it is Judge Sonia Sotomayor. Since the 16-year era of the liberal, activist Warren court that handed down myriad unprecedented decisions on race, criminal justice, privacy and church-state relations, conservatives have strived mightily to appoint strict constructionists and block permissive judges. Liberals, at the same time, have determined to do just the opposite, contending that the Constitution is a living document.

Before the Warren court, judicial nominations caused few political problems and generally were greeted with indifference by the voters. President Truman's four appointments (Harold H. Burton, Fred M. Vinson, Thomas C. Clark and Sherman Minton) caused hardly a stir. Nor did President Eisenhower's five (Earl Warren, John Marshall Harlan, William J. Brennan Jr., Charles Whitaker and Potter Stewart). Yet some of them went on to change the course of history. Mr. Eisenhower, in fact, publicly stated that he regretted the appointments of Justices Warren and Brennan. Subsequently, judicial nominations became major election issues and often have torn the country apart.

Pulitzer Prize-winning historian James MacGregor Burns, who after a long career at Williams College is now a Distinguished Leadership Scholar at the University of Maryland, has come up with a solution to these seemingly endless and divisive political battles. Mr. Burns points out that Article III of the Constitution, which created the Supreme Court, says nothing about the high court's right to declare acts of Congress unconstitutional. Moreover, the records of the debates at the Constitutional Convention offer no indication that judicial review of acts of Congress was what the delegates had in mind. In fact, it was never even discussed.

The power of judicial review was simply seized by Chief Justice John Marshall in the court's landmark 1803 decision in Marbury vs. Madison. President Jefferson and his Republican allies were outraged by the action of Federalist Marshall but felt powerless to counter it. In Marshall's 34-year tenure, the high court rendered other acts of Congress unconstitutional, and this power became widely accepted by the American body politic.

But this national consensus began to become unglued during the New Deal. When the elderly, conservative justices threw out New Deal legislation, which had passed by overwhelming congressional majorities, as unconstitutional, the nation was outraged. However, President Roosevelt's ham-handed effort to rein in the court met with a similar outcry. He proposed that he be allowed to appoint one new justice for each one older than 70 who refused to retire.

Under the Roosevelt proposal, the court could grow to a maximum of 15 judges. The contretemps eventually was resolved by the retirements of elderly justices and the president's appointment of new ones. The burning issue of the power of the Supreme Court then lay dormant until the controversies over the Warren court.

Mr. Burns says that allowing the Supreme Court to retain its power to declare acts of Congress unconstitutional is an affront to American democracy. John Marshall was wrong, he contends. It is emphatically the province and duty of the American people, not of the nine justices, to say what the Constitution is. Adding to the undermining of democracy, according to Mr. Burns, is the long tenure of the justices: 15 years since the beginning of the Republic and 26 years since 1970, because presidents are appointing younger justices who are living longer.

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