With Supreme Court picks, you never know
When John F. Kennedy nominated Byron “Whizzer” White to the U.S. Supreme Court, Democratic liberals expected the Coloradan would be attune with their political philosophy.
Wrong. Instead, they got one of the more conservative justices to serve in the latter part of the last century — an irascible, sometimes meanspirited jurist who thought little of history or the First Amendment’s assertion of a free press.
When Dwight Eisenhower tapped former California Republican Gov. Earl Warren to be chief justice of the United States, most conservatives thought he would lean toward their view of constitutional construction. Instead, they came to squirm in horror under a court that under his guidance became one of the most liberal in history. Signs proclaiming the need to impeach Warren popped up throughout the heartland.
Both examples are cited only to certify that one cannot know for certain what one will get in the process of stocking the most important judicial bench in the land, not even when there is some record to suggest the direction a candidate might take when confirmed. The best one can do is determine whether a nominee has the qualifications — education, experience, integrity — and hope for the best.
Certainly, Donald Trump’s nominee from Colorado, Judge Neil M. Gorsuch, has all the credentials. He graduated from Columbia, Harvard and Oxford, worked for a distinguished private firm, and has served a decade on the 10th Circuit Court Of Appeals. And those are just a few of the highlights.
The question of his fitness for court is not what the expected knockdown confirmation process will be about. It will be about political vengeance and the need to portray him as a conservative boogeyman as Democrats hunker down against Trump’s resolution to swing the balance of the court hard right. It will be about paying back the Senate’s majority Republicans for refusing to consider moderate appeals court judge Merrick B. Garland for nearly nine months as a replacement for the late Justice Antonin Scalia.
The hearings will be about the suitability of Trump himself and his efforts to change the direction, even the nature, of the nation.
Shall we turn back the clock on a variety of social issues like abolishing samesex marriage and abortion under any circumstance while continuing to grow gun rights? Gorsuch’s record would clearly seem to be in line with much of Trump’s agenda. The new president’s men vetted him thoroughly, and it’s clear Trump has little doubt about Gorsuch’s ability to follow in Scalia’s footsteps.
The modern day headbashing controversies over nominations began when Lyndon Johnson decided to elevate Justice Abraham Fortas to chief justice and the move blocked by Senate Republicans. Looking for revenge when Richard Nixon became president, Democrats rejected two of his nominees, Judge Clement F. Haynsworth Jr. and Judge G. Harrold Carswell, in pitched battles that took weeks. Haynsworth was clearly qualified but ran into textile union problems. Judge Carswell was a weak choice whose appointment was seen as revenge for the rejection of Haynsworth. He later was involved in unsavory personal activity.
Perhaps the most qualified nominee to be rejected was Ronald Reagan’s pick of Robert Bork, whose conservative rulings on lower courts were an anathema to majority Democrats despite his and their noteworthiness. The most sensational Senate confirmation battle in relatively recent times was over Justice Clarence Thomas, who was nominated by President George H.W. Bush. After sensational hearings involving allegations of sexual harassment by Anita Hill, he was confirmed by a narrow margin. Despite the silliness and thinness of her charges, Hill became more acceptable to African-Africans than Thomas because of his conservative views outside the black mainstream.
As another storm over the court brews, we know that even the most qualified — as Gorsuch obviously is — can be rejected, especially if the 60-vote rule to overturn the filibuster comes back to haunt Democrats who installed it when in the majority. Gorsuch’s superb qualifications won’t be the point here. His political philosophy as depicted by past rulings and any scurrilous tidbit that can arise from a certain microscopic examination of his life by his opponent’s will be. Gorsuch’s ability to withstand the onslaught will be the key. At this point, the betting is in his favor, but ...
Dan Thomasson is an oped columnist for Tribune News Service and a former vice president of Scripps Howard Newspapers. Readers may send him email at: thomassondan@aol.com.