Planning for the future
As we approach the month of June, “court watchers” of the U.S. Supreme Court begin to anticipate a flood of what are likely to be controversial decisions by the high court. It will also be the first anniversary of the confirmation of the newest member of the court, Ketanji Brown Jackson. Although only 50 when confirmed, she had a surprising depth of experience when she was appointed — 8 years as a federal trial judge, and one year as an appellate judge. Despite this, she was criticized by some Republicans and rightwing commentators who claimed she didn’t have sufficient experience for the high court.
Judicial experience has not always been a requirement for Republican appointees to the Court, however. Consider that in September, 1971 Richard Nixon was given the chance to fill two seats on the Supreme Court at almost the same time. Justices Hugo Black and John Marshall Harlan resigned from the court within a week of one another because of ill health. Nixon, who had had two nominees rejected by the Senate a year earlier (until it finally accepted his third choice, Harry Blackmun), nominated two men on the same day.
One was Lewis Powell, the former president of the American Bar Association, and a respected corporate attorney from Richmond, Virginia. The other was from Nixon’s own Justice Department, Deputy Attorney General William Rehnquist, who had graduated first in his class at Stanford Law School and later practiced law in Phoenix, Arizona.
Neither had had any experience as a judge. In fact, despite his expertise in corporate law, Powell was so unsure about his unfamiliarity with the kinds of issues decided by the Supreme Court — criminal cases, constitutional matters, administrative law, and the like — that he had turned Nixon down for an opening on the court in 1969. By 1971, Powell was 64, considered “old” by the standards of a Supreme Court justice, many of whom these days are as young (or younger) than the 50 year-old Justice Jackson was last year.
Despite their lack of court experience, both men were confirmed with relative ease, Rehnquist on a vote of 68-26, and Powell by a lopsided 891. Powell developed into a cautious, restrained judge, becoming one of the swing votes in the center of the court. He became a mentor to Sandra Day O’Connor, who was appointed to the court in 1981; like Powell, she was frequently an unpredictable centrist.
Nixon’s other appointee was the 47 year-old Justice Rehnquist. Rehnquist turned out to be the most reliably conservative of Nixon’s four appointments to the Supreme Court — visibly so on a court that in 1971 was far more liberal than today. He almost always voted against criminal defendants, in favor of private businesses over the government, and narrowly interpreted individual rights guaranteed by the Constitution. During his early years on the court, his was so frequently the only dissenting vote that his clerks once presented him with a “Lone Ranger” doll as a gift.
Lewis Powell remained on the court until 1987 he was 80 (an age at which many supreme court justices are just getting warmed up), saying that he didn’t want to remain until “people wondered why that old man was still hanging around.” By the time of his departure, Powell had become so well-respected (and a reliably middle-of-theroad jurist) that Senate Democrats put up a vigorous fight to defeat President Ronald Reagan’s far more conservative choice as Powell’s successor, Robert Bork. When Bork was indeed rejected by the Senate, Reagan eventually replaced Powell with the more moderate Anthony Kennedy.
For William Rehnquist, however, things took a different path. In 1986, President Reagan chose Rehnquist to replace Warren Burger as chief justice. Rehnquist received 33 “no” votes — a record for a chief justice nominee, but still more than enough confirmation. His nearly 20 years as chief justice allowed him, not always successfully, to try to enhance the power of the individual States at the expense of the federal government, even as his judicial philosophy remained as reliably conservative as it had been in 1971. And one of his law clerks during those years was a young lawyer named John Roberts, Jr., who would later succeed Rehnquist as chief justice when he died in office in 2005.
One could fault many individual decisions by either Powell or Rehnquist during their tenures on the court (Powell for 16 years and Rehnquist for 34, more than half as chief justice). It’s safe to say, however, that both became well-respected members of the court, Powell carving out a spot on the center and Rehnquist on the right. Whatever their failings might have been, neither seems to have been hampered by that lack of “judicial experience.”