Reaganism and Roberts

Article excerpt

AS THE SENATE GRINDS toward the confirmation of the next justice of the Supreme Court, Democrats hope that the President made a mistake, or may even be disappointed, in his choice of an apparent conservative. They know there is a long history of presidents who did not get what they bargained for in their Supreme Court appointments, and in the case of John Roberts, a mistake or disappointment is probably the best they can hope for.

After leaving office, Dwight Eisenhower was asked by a reporter if he had made any mistakes as president. "Two," Ike replied. "They are both on the Supreme Court."

Of course care in the nomination process was something Ike was not guilty of. He cut a deal with California Governor Earl Warren at the 1952 Republican convention in which Warren agreed to deliver the California delegation to Eisenhower in return for the first Supreme Court vacancy after the election. When Chief Justice Fred Vinson died in September 1953, Warren called Ike to claim his chit. Eisenhower tried to go back on his word, telling Warren he had not meant the Chief Justice seat. Warren was livid, and gave the president an ultimatum: appoint him, as promised, or he would resign as governor and stomp the nation, denouncing the president as a liar. Warren was given a recess appointment, and was on the bench two weeks after Vinson's funeral. Three years later, Ike elevated William J. Brennan, again by recess appointment, shortly before the 1956 election, thinking that a northeastern Irish Catholic (Brennan was from New Jersey) would help his campaign. But as it turned out, Ike named Brennan on the basis of a conservative speech he had delivered to the American Bar Association Convention-a speech that Brennan was actually reading for the conservative New Jersey Supreme Court Chief Justice Arthur Vanderbilt, who had laryngitis. Ike had wanted two moderate conservative justices, and instead got two of the most active liberals in 20th-century jurisprudence.

In 1902 Teddy Roosevelt appointed Oliver Wendell Holmes, then chief justice of the Massachusetts Supreme Court, to fill what was then called the New England seat. He acted on the advice of Senator Henry Cabot Lodge, who assured TR that Holmes would rule in favor of Roosevelt's progressive initiatives. But within months the president asked the Justice Department if there was not some way to recall Holmes. …