Presidents, Picking Justices, Can Have Backfires - New York Times

Presidents, Picking Justices, Can Have Backfires - New York TimesJuly 5, 2005
Presidents, Picking Justices, Can Have Backfires
By TODD S. PURDUM

WASHINGTON, July 4 - In July 1902, confident that he had found a judge opposed to "big railroad men and other members of large corporations," Theodore Roosevelt named Oliver Wendell Holmes Jr. as his first appointee to the Supreme Court, delighted with a choice that their fellow Republican, Senator Henry Cabot Lodge of Massachusetts, called "our kind right through."

Twenty months (and many convivial dinners at the White House) later, in the middle of an election year, Justice Holmes voted against his progressive president in the biggest railroad trust-busting case of the time, United States v. Northern Securities. "I could carve out of a banana a judge with more backbone than that," an enraged Roosevelt declared.

As President Bush prepares to fill a vacancy that conservatives hope (and liberals fear) could shape the Supreme Court for a generation, he faces a daunting historical reality: presidents don't always get what they bargain for when they grant even seemingly close allies lifetime tenure on a fiercely independent institution, where the hot-button issues of the future are hard to predict.

"The biggest damn fool mistake I ever made," Dwight D. Eisenhower said of his appointment of Chief Justice Earl Warren, who discomfited him with the Brown v. Board of Education ruling ordering desegregation of public schools, and other liberal opinions. Harry S. Truman was even more scathing about Justice Tom C. Clark, a Truman appointee who voted against his 1952 seizure of the steel industry to avert a strike.

"It isn't so much that he's a bad man," Truman later told the oral historian Merle Miller. "It's just that he's such a dumb son of a bitch."

It is precisely to guard against such surprises - and the likes of more recent Republican appointees who have disappointed their party's conservative wing, from the retiring Justice Sandra Day O'Connor to David H. Souter and Anthony M. Kennedy - that many conservatives are now urging Mr. Bush to pick an established jurist or legal scholar with a defined philosophy, clear paper trail and unimpeachable credentials on questions from abortion to property rights.

"He's not guaranteed of getting what he's hoping for, but he can maximize his chances," said Edward Lazarus, a former clerk to Justice Harry A. Blackmun and the author of "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court." "The way to maximize your chances is to pick someone who is really deeply ideological and has spent a long time thinking about the issues, either a judge or a scholar or someone with a long track record and well-formed ideology."

Justices Antonin Scalia and Clarence Thomas, whom Mr. Bush has cited as his models, have ruled predictably - and often in lockstep. Many of the federal appellate court judges believed to be among the candidates Mr. Bush is now considering would appear to fit the same mold.

But even one of the conservative movement's favorite candidates, Judge J. Michael Luttig of the Court of Appeals for the Fourth Circuit in Richmond, Va., agreed to invalidate a Virginia ban on a form of abortion that the law calls partial birth - a restriction he had previously upheld - after the Supreme Court struck down a similar law in Nebraska. As a member of the Supreme Court, would he feel even more bound by its precedents and traditions?

No less an expert than Chief Justice William H. Rehnquist suggested in a speech more than 20 years ago that any president's ability to pack the court with like-minded justices is inherently limited. While a new justice might feel "strongly loyal to the president who appointed him," Justice Rehnquist told a Minnesota law school audience in 1984, "institutional pressures" within the court itself tend to "weaken and diffuse the outside loyalties of any new appointee."

He added that the court "is an institution far more dominated by centrifugal forces, pushing towards individuality and independence, than it is by centripetal forces pulling for hierarchical ordering and institutional unity."

Presidents as far back as Thomas Jefferson and James Madison have been surprised or disappointed by decisions of their appointees to the court. But perhaps the most famous example was Abraham Lincoln, who named his secretary of the treasury, Salmon P. Chase, as chief justice primarily to ensure that the court would uphold the constitutionality of the legislation by which the federal government had financed the Civil War, and which Mr. Chase had helped draft.

"We cannot ask a man what he will do, and if we should, and he should answer us, we would despise him," Lincoln said, by way of explaining his choice. "Therefore we must take a man whose opinions are known."

Perhaps in one of his perennially unsuccessful efforts to win the Democratic presidential nomination, Justice Chase wrote the court's opinion finding the legislation unconstitutional. But the decision was also, Chief Justice Rehnquist noted, "a textbook example of the proposition that one may look at a legal question differently as a judge than one did as a member of the executive branch."

It is just that reality that so concerns some conservatives about the prospect that Mr. Bush might name Attorney General Alberto R. Gonzales, whose views on issues like abortion are less known. That is why Republican and Democratic senators are already jousting pre-emptively over just how detailed their questioning about any nominee's views on issues should be. To the impassioned advocates on both sides, every detail might be telling.

More than 60 years ago, Zechariah Chafee, a leading legal historian, suggested that the best place to look for signs of a nominee's judicial attitudes was "not in his file of clients or in his safe-deposit box but at the books in his private library at home."

While some legal scholars like Laurence H. Tribe of Harvard have argued that presidents do have enormous power to influence the Supreme Court, others remain skeptical. Richard D. Friedman, of the University of Michigan Law School, said that "the dynamic of the court can be very important, the nine justices speaking to each other and, very importantly, to their clerks."

Harlan Fiske Stone, appointed by Calvin Coolidge, whom he had served as attorney general, eventually came under the influence of Justices Holmes and Louis D. Brandeis "and moved quite steadily left," Professor Friedman said.

The court's slow turnover also all but guarantees that presidents will have limited vacancies to fill. Since 1869, when the number of seats was set at nine, only William Howard Taft and Franklin D. Roosevelt managed to name a majority of justices in a single term, and only Dwight D. Eisenhower did so over the course of two terms. Moreover, Franklin Roosevelt's appointees were nothing like a bloc, and at least one of them, Felix Frankfurter, a prominent liberal law professor, proved surprisingly conservative on the bench.

"I just think what Mr. Justice Frankfurter did when he was a professor and private citizen overlooks the fact that once he got on the court, the job is completely different," said William T. Coleman Jr., who clerked for him in 1948-49 and went on to become Gerald R. Ford's secretary of transportation. He noted that when Mr. Ford appointed Justice John Paul Stevens, who now often votes with the two Democratic appointees on the court, "we read every opinion he'd ever written, but it's really the quality of the person you look for."

"President Ford told me just three weeks ago that one of the decisions he was proudest of was his appointment of Mr. Justice Stevens," Mr. Coleman added. "And that doesn't mean he has decided every case the way President Ford wanted."