 |
|
The President
Regarding the due administration of justice as the strongest cement of good government, I have considered the first organization of the Judicial Department as essential to the happiness of our Citizens, and to the stability of our political system. Under this impression it has been an invariable object of anxious solicitude with me to select the fittest Characters to expound the laws and dispense justice. - George Washington Presidential MotivationsMost presidents seem to follow the equivalent of a biological imperative when appointing justices to the Supreme Court. They want to appoint people who will decide cases in much the same manner and reflecting the same values that they themselves hold. Ideology drives the nomination process. This is more true for a president like Reagan, who had a strong commitment to ideology, than for one like Eisenhower or even Clinton, whose ideological predispositions were less strongly held. President Bush clearly demonstrated this imperative when he personally vouched for the value-set of Harriet Miers as being a like-minded nominee before being driven to a more openly ideological choice by his conservative political base. It is also true, however, that most presidents take their responsibility with the seriousness expressed by George Washington in the quote above. The result is usually a genuine effort at finding a highly qualified person within the constraints imposed by the nomination setting and the president's criteria. Nested within the ideological imperative are sub-motives that can influence particular choices by a president. Among those sub-motives are:
Framing the NominationOf course, to hear them tell it, presidents nominate only the best qualified people. Clinton characterized Breyer as "one of the outstanding jurists of our age," and Ginsburg was "one of our nation's best judges (with an) historic record of achievement." President Bush declared Thomas to be "the best qualified at this time." For President Nixon, Clement Haynsworth, who would ultimately be rejected, was an "eminently qualified jurist, scholar, and intellect." Even Nixon, though, sensed that the normal superlatives couldn't be stretched too far. His relatively lukewarm description of Harold Carswell as "fair and . . . a very competent judge" played into the hands of the opposition, who successfully challenged Carwell's qualifications to serve on the Court. One of the more successful efforts in framing nominations came with the use of the term "strict constructionist, " to describe a nominee. First used by Andrew Jackson, the term was revived by Richard Nixon as a cover term for his intention to appoint individuals to the Court who would bring a political conservative voice to what he viewed as a very liberal Court. Don't be fooled either by the use of the term "judicial activist". Conservatives have done a good job at equating the term with justices seen as more liberal in their jurisprudence. In fact, however, there is no lack of judicial activism among the more conservative justices in behalf of their favored jurisprudential views. President Bush's PicksOnly in his second term was President Bush provided an opportunity to appoint a justice to the Supreme Court. It came at an opportune time.The Republicans had increased their Senate majority from 51 to 55 members in the 2004 elections and his support in the Senate was a healthy 74% in terms of winning votes on his positions regarding legislation. His approval rate among voters of 45% regarding his performance as president seemed low at the time, but it was destined to drop even more as the 2006 election loomed. The initial vacancy of Justice O'Connor, the quintessential pivotal justice in closely divided Court decisions, meant that both the left and the right pressured the president and the Senate to fill the vacancy with one they perceived to be friendly to their respective causes. Our speculation that President Bush would seek a nominee who could only be described as right of center, possibly even far right of center, was borne out. With John Roberts, President Bush put forward a young (50) and well-respected attorney with two years experience on the D.C. Circuit Court who satisfied the president's conservative judicial sentinels but roused some opposition from liberal judicial watch groups. With the death of Chief Justice Rehnquist, the president deftly shifted the Roberts nomination to the Chief Justice position, easing the controversy somewhat because of replacing one conservative on the Court with another. The president then nominated Harriet Miers to replace O'Connor, choosing a woman to replace a woman and with one whose conservative credentials were less than impeccable. This strategy diminished opposition from the left, but in a scenario rarely seen in appointment politics, the president's own conservative political base denounced the nomination. Miers withdrew as a nominee and the president responded to the demands of the conservatives by nominating Samuel Alito. Alito withstood the opposition from the left, and the president succeeded in making the Supreme Court the most conservative of the modern (post-1954) era. Despite this considerable change in the Court over the last fifty years, conservatives feel they are still one justice away from a solid conservative majority that could overturn Roe v. Wade and issue other opinions that would gut a number of more liberal Court opinions over the past fifty years. Justice Anthony Kennedy continues as a potential swing vote who can side with the more liberal bloc to produce 5-4 decisions that thwart the conservative agenda. Of course, the departure of any member of that liberal bloc of four would give President Bush one last opportunity to solidify the transformation of the Court. The 2006 election results for the Senate will make it more difficult for him, however. At this point in time, I do not anticipate a vacancy occurring on the Court as a result of anyone's free will to depart. Assuming good health to all, we will not see another nomination during the Bush Administration. Last update: 12/27/2006 |
|