The other day I was urged to sign a petition clamoring against Supreme Court nominee Samuel Alito. That youthful activism was refreshing, if not entirely predictable. After all, Alito was nominated by the scourge of quasi-politically knowledgeable college students everywhere – President Bush. If nominated by the religious right, it seems reasonable to believe the nominee would represent that new conservatism in his judicial review. But history shows a great deal of inaccuracy when predicting the judicial philosophy of potential justices.
It can seem sensible. Any nominee that was politically active would likely be shot down by opposing partisans, so presidents often have only a handful of interviews and specific court decisions to determine a prospective justice’s future judgments. Even then, most of us would probably act differently with a lifetime spot in such an insulated position without much worry about public opinion.
In fact, through time, the most discussed Supreme Court decisions have changed with altering public opinion and not with a concentration of liberal or conservative justices. In 2002’s Atkins v. Virginia, the Supreme Court overturned a 1989 decision permitting the execution of mentally challenged criminals. The majority ruling referred to “polling data” that showed most Americans were against executing the mentally challenged.
During the 1990s when interest in Roe v. Wade was once again rising, current Justice David Souter wrote that overturning that most-controversial precedent would cause “damage to the [Supreme] Court’s legitimacy.” Based on this, the public view is most certainly in the minds of those in our highest court.
While public opinion seems to influence court decisions, the politics of the president by whom justices are nominated does not.
Souter is an excellent example. Nominated by George H. W. Bush in 1990, he has regularly upheld affirmative action and abortion rights. Souter also co-authored a dissenting opinion for Boy Scouts of America v. Dale, which permitted the Boy Scouts to exclude gay scoutmasters.
Presidents have nominated justices who defy their political interests for decades.
Conservative Dwight Eisenhower nominated William Brennan, who supported rulings for affirmative action and abortion rights as a justice. Democrat John Kennedy nominated Byron White, who was a chief opponent of Roe v. Wade. Richard Nixon-nominated Warren Burger was part of the decision forcing Nixon to release the Watergate tapes.
It goes even further. Republican Gerald Ford’s nomination of John Paul Stevens, who still is on the bench, seemed sensible. Early in his tenure, Stevens voted to reinstate capital punishment and decided against abortion rights. However, since the 1980s, Stevens has begun to shift his views on affirmative action and open his interpretation of free speech.
Moreover, it was Ronald Reagan – a divisive president who instilled many of today’s conservative views – who nominated Alito’s predecessor Sandra Day O’Connor. O’Connor is considered a moderate justice who has supported the restriction of the death penalty and other seemingly liberal decisions.
What all this means is that the Supreme Court is doing its job. If a justice is meant to interpret the Constitution, his decisions should sometimes come in conflict with his personal politics.
The danger is that the nomination process could get too easy. There were 20 nominees that were either rejected, withdrawn or otherwise avoided from 1811 to 1894, while the 20th century had only seven such failures. Without grueling Senate confirmations, Americans might get one of the more dangerous governmental failures: a justice with an agenda.
We can only hope that partisanship and ambiguity force Supreme Court nominees to continue facing the exhausting, probing and often unrewarding questions of directionless senators. And nothing gets a congressman more ornery than a petition from politically-motivated constituents.
Christopher George Wink can be reached at firstname.lastname@example.org.