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.
The myth that binds us
In 1987, the bicentennial of the drafting of the Constitution, I wrote a series of articles for the Star Tribune, which later became a book, titled "Our Constitution: The Myth That Binds Us." By "myth" I meant to signal that many things Americans believe about the Constitution are not quite true. By "binds us" I also suggested that our collective willingness to believe in the myths is an important part of the glue holding the country together.
One belief important to the myth that binds us is this: That when the Supreme Court exercises its role as final decider on important public issues, it does so modestly, on a non-partisan, non-ideological basis and only when necessary to protect the Constitution from clear excesses committed by the political branches.
Preserving that belief can be a tall order, and that perception is at a low ebb.
Much as we might wish it to be or even need it to be otherwise, there is no denying that right now the public largely views the Supreme Court as another arena for playing out the same partisan and ideological warfare that dominates the other branches. And it's hard to say this belief is wrong.
I asked constitutional law professor Dale Carpenter of the University of Minnesota Law School whether he believes Supreme Court justices are able to follow some set of neutral principles of legal analysis, even when it leads them to policy outcomes with which they would disagree. I really liked the maturity, complexity and balance of his answer, which went like this:
"There's evidence that the justices do vote against their policy preferences from time to time, enough to disrupt the general narrative that they just vote their ideological preferences. Chief Justice Roberts' vote to uphold most of the Affordable Care Act is the latest big example. But that doesn't stop the general story from being true."
The caveat section
Smart, well-informed court watchers will warn against a simplistic partisan or excessively ideologically based analysis of the court. It would be disingenuous to dispute that the current court is composed of four liberals (all appointed by Democratic presidents), four conservatives (all appointed by Republicans) and one conservative-leaning, Republican-appointed swing voter (Justice Anthony Kennedy). But not all rulings are 5-4. Members of both ideological "blocs" often break ranks.
Plus, notwithstanding the Cardozo nomination above, the story of politics and the Supreme Court is not as new as all that.
As the story of John Marshall's partisan war with Thomas Jefferson and James Madison makes clear, partisanization of judicial appointments is nothing new. Franklin D. Roosevelt came into office facing a group of conservative justices (most, but not all, appointed by Republican presidents) who had grave reservations about the expansion of federal power represented by the New Deal. After striking down several major New Deal laws and programs, the justices were hung in effigy. FDR threatened to expand the size of the court so that he could appoint several new members, presumably more friendly to New Dealism (although, for the sake of the myth, FDR said for public consumption that his desire to expand the court was motivated by concern for the age and health of many of the justices he had inherited).
The current size of the court (nine justices) is not established in the Constitution. It has varied over U.S. history from five to 10. As this excellent piece demonstrates, the changes in the size of the court were almost always done for partisan/political/ideological reasons. Constitutionally, the number of justices could be changed again. But when FDR tried to do it in 1937, he discovered that the norms had changed and he couldn't get away with it.
So in analyzing the current state of the relationship between Supreme Court appointments, Supreme Court decisions and partisan politics, let's not get carried away with how awful things are, or at least not pretend that an odor of politics wafting from the judicial branch is unprecedented. University of Minnesota political scientist Timothy Johnson, who studies the history and politics of judiciary matters, said he did not believe the current partisanship surrounding the court or Supreme Court has reached an all-time high.
But - more so than at any time since the FDR court-packing crisis - political and ideological considerations have taken over the court. It starts with the nomination of new justices, which is really, in a sense, the key moment. In contrast to the tales at the top of this installment, the new norms of Supreme Court appointments are roughly this:
Democratic presidents nominate relatively reliable liberal justices. Republican presidents appoint conservatives. They are carefully vetted along ideological lines, although those doing the vetting must publicly deny that they are doing so. Those ideologies are reflected in the jurisprudence. And, although this can't be proven, the new norms seem to impose on justices an unspoken obligation to retire at a time when their successor can be nominated by a president of the "correct" party. (Evidence exists that some justices have expressed a desire to retire under a president of the "correct" party.) Johnson said that a powerful norm along those lines is "clearly established. In an interview before Election Day, he predicted that Clinton appointed Justice Ruth Bader Ginsburg would retire if Pres. Obama was reelected.
As I mentioned in the previous installment, the 1973 Roe v. Wade decision, establishing the boundaries of a pregnant woman's right to choose an abortion and the boundaries of a state's power to ban them, was a key moment in creating the new - more visibly political - norms of Supreme Court appointments.
To illustrate how much has changed since Roe, it's worth noting that the opinion was written by Nixon (in other words, Republican) appointee (and Minnesotan) Harry Blackmun. The 7-2 majority in favor of the holding was comprised of five Republican appointees and two Democrats, while the opposition consisted of one Republican appointee and one Democrat. If you contemplate those numbers, they are a shorthand reminder of how much has changed and how much the current ideological and partisan nature of the court - and to some degree of the whole country - have been shaped by the politics of Roe. Before Roe, views of abortion were not split along party lines to the degree they are today. And, obviously, a potential Supreme Court nominee's views on abortion were not a factor.
Because Roe was such a strong symbol of judicial activism, it created a lasting coalition between social conservatives, motivated by abortion and a longer list of quasi-religious positions, and legal conservatives, who were opposed to a string of Warren Court decisions creating new rights based on the theory that the Constitution was an "evolving" document.
In 1978 and 1980, social conservatives organized as "the Moral Majority" knocked off several liberal senators. In 1982, conservatives at the Harvard, Yale and University of Chicago law schools created the Federalist Society. Robert Bork, one of the early leading lights of the "originalism" movement (the movement to limit Supreme Court interpretations to the "original meaning" or "intent" of the words in the Constitution), was one of its founders. Four of the five current Republican members of the Supreme Court had been members of the Federalist Society. The one exception - Anthony Kennedy, the lone "moderate" or "swing vote" on the court - was appointed only because Democrats rejected President Ronald Reagan's first choice to fill that vacancy - Federalist Society founder Robert Bork himself.
The 1987 rejection of Bork and the 1990 confirmation of Justice David Souter played key roles in the emergence of the new norms.
Two key confirmation battles
Luckily for Roe supporters, the new partisan norms of appointments did not take full effect immediately after the ruling, or Roe would likely have been reversed by now. The first two justices appointed by Republican presidents after Roe (John Paul Stevens, appointed by Gerald Ford in 1975; Sandra Day O'Connor in 1981 by Reagan) turned out to be defenders of the ruling. Roe was not a major issue in their appointments. The next Reagan appointment - Antonin Scalia, replacing retiring chief justice Warren Burger - did increase the anti-Roe bloc of the court and is the senior member of the court's "originalist" bloc (although Scalia seems to prefer the term "textualist").
For the next opening, Reagan nominated Bork - one of the intellectual leaders of the new jurisprudential conservatism and a man who had publicly called the majority ruling in Roe a "wholly unjustifiable judicial usurpation [of the power of states to regulate or outlaw abortion] ... without any warrant in the Constitution."
The Senate rejected Bork's nomination 58-42, with only two Democrats voting in favor.
U of M professor Carpenter called the rejection of Bork the "breaking point" for the old norm, which was that the Senate would confirm nominees who were reasonably qualified, irrespective of ideology. Bork was "eminently qualified" by the usual standards of scholarship, judicial experience and especially intellectual heft, Carpenter said.
Since then, every nomination has had at least elements of partisan and ideological warfare. In 2011, on the anniversary of the Bork rejection, New York Times columnist Joe Nocera revisited the incident, he said, as "a reminder that our poisoned politics is not just about Republicans behaving badly, as many Democrats and their liberal allies have convinced themselves. Democrats can be -- and have been -- every bit as obstructionist, mean-spirited and unfair."
On the other hand, if the goal was to save Roe, it worked. Reagan's substitute nominee, Kennedy, has voted to uphold at least the basic ruling in Roe, which is likely to be overturned if any of the five remaining pro-Roe justices are replaced by a no-on-Roe appointee.
In 1990, President George H.W. Bush nominated New Hampshire Judge David Souter to the Supreme Court. The lesson of Bork's rejection was that Republican presidents who wanted their nominees confirmed by the Democratic Senate should avoid outspoken judges or those with a controversial public record. Souter's style and record were so bland that the term "stealth nominee" became fashionable. Senators who tried to pierce the veil found Souter the most artful of dodgers.
Bush's chief of staff, John Sununu, who was a pro-lifer and as governor of New Hampshire had put Souter on the state Supreme Court, had suggested Souter to Bush and said publicly that Souter would be a "home run for conservatives." With that wink-nod, conservatives supported the nomination. Souter turned out to be a strong supporter of Roe and a solid member of the court's liberal bloc. As a final insult to conservatives, Souter submitted his letter of resignation in April 2009, just after liberal Democrat Barack Obama had replaced George W. Bush as president. Ever since Souter showed his liberal colors, social conservatives have adopted an unofficial mantra of "No more Souters," meaning that they will redouble their efforts to ensure that any future Supreme Court vacancies filled by Republican presidents will be reliable jurisprudential conservatives.
No one will say this explicitly, but I don't believe anyone could be nominated for president by either party unless that party's relevant "Roe bloc" was satisfied on this point.
Mitt Romney, perhaps because he was an abortion rights supporter during both of his Massachusetts campaigns, said it more explicitly than usual in a September "Meet the Press" interview. Romney: "It would be my preference that [the Supreme Court justices] reverse Roe v. Wade." Of course, he stopped short of saying that he would make sure anyone he appointed to the court would have that view.
Where does the Constitution come in?
The Constitution created the Supreme Court, gave the justices life terms, specifies who nominates the justices (the president) and who confirms the nominations (the Senate). The Framers provided no guidance about competing theories of constitutional interpretation. The Framers, who envisioned a system without national political parties, said nothing about partisan warfare over judicial appointments, nor the idea that we would someday have presidential or Senate candidates running for office on implicit or explicit promises to nominate or confirm only judges who rule certain ways.
Nothing in the Constitution suggests that the Framers intended such a system as the one that has evolved under the latest norms. Nothing in the Constitution prevents it either. One overarching theme of series is that the current state of our system is a mélange of structural factors, rooted in the Constitution and almost impossible to change, with laws and rules that have been formally adopted, and also of powerful unwritten norms of behavior that shape the words and actions of political players.
Those norms have changed and are still changing. Not so long ago, qualified judicial nominees could be confirmed by unanimous voice vote. As recently as 1998, Justice Scalia was confirmed unanimously. Then came Bork. The next Democratic nominee, Ruth Bader Ginsburg, was confirmed 96-3 in 1993; the next year, Justice Stephen Breyer was confirmed 87-9. President George H.W. Bush's nomination of John Roberts was confirmed in 2005 by 78-22, with the Democratic senators divided 22 ayes and 22 no's. The next year, Justice Samuel Alito was confirmed by 58-42 with just four Democrats voting aye. Obama's nomination of Sonia Sotomayor attracted nine votes from Republican senators with 31 opposed. The most recent nominee, Elena Kagan, got just five Republican votes.
These numbers demonstrate that, on a normative basis, it is becoming easier and easier for senators to take party and ideology into consideration when voting on Supreme Court nominees. In fact, perhaps it is becoming politically necessary.
Richard Lugar of Indiana came to the Senate in 1977, when the old norms of judicial confirmation were in full force. He was comfortably reelected five times and consistently voted for qualified judicial nominees without applying a partisan or ideological test. He was one of the few Republican senators to vote for both Sotomayor and Kagan.
This year, Lugar, a conventional, old-school conservative, was defeated for re-nomination by Tea Party-supported Richard Mourdock. There were many reasons for Lugar's demise. But Mourdock used Lugar's votes for the two liberal justices as a campaign issue, pledging (at an event hosted by the Federalist Society) that he would have voted against both of those nominees and any other liberal that Obama might nominate. If the few other Republicans who still follow the old norms conclude that such votes are political suicide, it's not hard to construct a scenario in which no justice can be confirmed unless the president's party holds a filibuster-proof majority. The norms they are a-changing.
To push the scenario to its limit, what if vacancies on the court sat open for years because no one could get confirmed? The Constitution provides no guidance on that.