Replacing Stevens

06/12/2010 05:12 am ET Updated May 25, 2011

In 1810, a few months less than two hundred years ago associate Justice William Cushing died and President James Madison began looking for a replacement. He first nominated
Former Attorney General Levi Lincoln. The Senate, who liked him, voted unanimously to confirm him without debate. But when he found out about what happened, he declined the job. Then Madison nominated a certain Alexander Wolcott, who was famous as a jerk and was rejected 24-9. Then he nominated Former Senator John Quincy Adams, who was then Minister to Russia. The Senate unanimously approved him the next day. No hearings, no real debate, no nothing. When Adams found out about it a few months later, he sent a letter declining the position to both Madison and Congress.

Finally, Madison nominated a 32-year-old congressman named Joseph Story to the position. A weary Senate again, voted to confirm him sight unseen. Story was one of the greats and went on to serve until 1845.

It's nice that this story had a happy ending, but think about it. Two nominees, who had already been confirmed, declined to serve. Also, the Senate didn't even investigate any of the guys, even the one who was rejected. Could you imagine that happening today?

To be perfectly fair, they didn't hold hearings on judges, much less Supreme Court ones, until the 20th century. The ones that had been rejected in the 19th century were primarily because the majority thought the President was an asshole rather than anything the nominee himself did.

Generally, the President could nominate a moron, (Charles Whittaker in 1957) or an evil sociopathic monster (James MacReynolds in 1914) and they would get on with no problem. In fact, between 1897 and 1968, the Senate rejected only a single nominee, John Parker, who had made racist remarks a decade before.

All that began to change in 1968, when Lyndon Johnson tried to promote associate Justice Abe Fortas to be Chief. The Republicans ganged up on him, and poisoned the atmosphere of the US Senate, leading to the rejections of Clement Haynesworth (who didn't deserve it) and Harold Carswell (who did). While revenge hasn't been a major factor in nominees, of late ideology has.

Robert Bork was rejected by the Senate, because he was too Conservative and Harriet Miers had to withdraw her nomination because she was too liberal. The question as to who's going to be appointed by President Obama is -- will the Republicans in the Senate decide to go back to the 19th century way of thinking and vote against whomever the President appoints because they think he's an asshole?

It depends on whether or not the majority of the Republicans think they could get away with it. The more obnoxious the nominee is considered, the greater the possibility the Republicans will be as cohesive as they were in the health care debate.

What might be considered obnoxious? Appeals Court Judge Diane Woods was a pro-choice activist, for example, and Solicitor General Elena Kagan, when she was at Harvard, tried to ban Military recruiters from campus, which is part of the reason she never made it to the Court of Appeals when Clinton nominated her in 1999.

Then there's the question of evolution. Byron White was appointed by John Kennedy in 1962 as a progressive liberal, he wound up being a conservative. John Paul Stevens and David Souter were appointed by Republicans as hard right conservatives, but turned out to be shining liberals. How does one make certain that growth in either direction won't happen? You can't.