FedSoc Blog

How Picking a Supreme Court Justice Became Partisan


by Publius
Posted November 26, 2012, 9:21 AM

In the Minn Post, Erick Black offers an extensive history of the Supreme Court focusing on how the politics of nominees changed over time. It begins:

It’s 1932. Herbert Hoover is president. There’s a vacancy on the Supreme Court. A New York judge named Benjamin Cardozo is widely considered the most brilliant legal mind in the nation. His appointment is urged by the deans of all the top law schools and – even though Cardozo is a liberal Democrat – by political figures from both parties. Hoover resists. Justice Harlan Fiske Stone of New York, a Republican appointee, even offers to resign if that will make Hoover less concerned about having too many New Yorkers on the bench. Hoover relents and sends Cardozo’s name to the Senate, which confirms him by unanimous voice vote.

How many things about this story could not happen today?

It’s 1953. President Dwight Eisenhower appoints California’s Republican Gov. Earl Warren as the new chief justice without any of the kind of “vetting” to which 21st century nominees are subjected. (It would be hard to vet Warren’s judicial philosophy, because he has never been a judge.) Warren will come to personify a rights-creating liberal chief justice and Eisenhower will privately regret the appointment while always publicly backing the Warren Court’s rulings. In 1956 Eisenhower also appoints Judge William Brennan, a New Jersey Democrat who, like Warren, will become a staunch liberal. Eisenhower, preparing to run for reelection and, having appointed two Republicans by then, apparently believed that appointing a Democrat would make him look less partisan and broad-minded.

Imagine a president making that calculation today.

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