When Chief Justice John Roberts administers the oath of office to the next president, he will be flanked by three, and almost four, octogenarians: Justices Ruth Bader Ginsburg (83), Antonin Scalia (80), Anthony Kennedy (80), and Stephen Breyer (77). The next president will likely have the opportunity to appoint a replacement for one, two, three, or maybe even four of those justices. These decisions will reshape the Court and how it reads the Constitution for decades to come. Republican presidential candidates will likely pledge to appoint “constitutional conservatives” to the bench—which ought to mean judges who will be constrained by its original meaning. However, GOP presidents have filled 12 out of 18 Supreme Court vacancies over the past half-century, with disappointing results. This track record teaches five important lessons that should guide future nominations.
1. Bruising confirmation battles are worth the political capital for a lifetime appointment
Presidencies last four to eight years. A Supreme Court appointment can last three decades. Long after the names Robert Bork and Douglas Ginsburg faded from the zeitgeist, Anthony Kennedy continues to have an oversized impact on our society. President Reagan initially nominated Bork and then Ginsburg to replace the retiring Justice Lewis Powell in 1987, but after the political process chewed up both nominees, the administration turned to a moderate circuit court judge with a thin public record from Sacramento. Anthony Kennedy was easily confirmed, 97-0. Placating Joe Biden, who chaired the Senate Judiciary Committee, irreparably altered our constitutional order.
President George H. W. Bush made a similar, but even worse choice three years later. Faced with a once-in-a-generation opportunity to replace liberal lion Justice William Brennan and thereby alter the balance of the Court, Bush faltered. Instead of girding for battle and burning the political capital for what would have been a brutal hearing—a preview of what would happen to Clarence Thomas a year later—Bush punted. On the recommendation of Warren Rudman and John Sununu, he quickly selected First Circuit judge David Souter. The “stealth candidate” was easily confirmed by a vote of 90-9. He would become a solid member of the Court’s liberal bloc, retiring six months into the Obama presidency (at the relatively young age of 69), opening his seat for the nomination of Sonia Sotomayor.
In 2005, President George W. Bush initially nominated Harriet Miers to replace the retiring Justice Sandra Day O’Connor. Miers was viewed as an easy appointment, as her selection was supported by both Harry Reid and Chuck Schumer—which should have been a sign that something was amiss. Only after Miers withdrew, in the face of conservative and libertarian opposition, did the president nominate the far more controversial (and better qualified) Samuel Alito. He was confirmed by a 58-42 vote.
Whatever political capital was gained or sought in 1987, 1990, and 2005 by appointing a less-contentious nominee to avoid a bruising political fight is entirely dwarfed by the impact a justice has on our legal order over three decades. The appointment of a justice should be viewed on the same plane as a president’s “signature” legislative achievements. After the enactment of the Affordable Care Act, President Obama’s most enduring political legacy may well be his appointments of Justices Sonia Sotomayor and Elena Kagan. Obamacare can still be repealed. These appointments are for life.
But what if a contentious nomination fails? Try again. For better or worse, the Senate can mount only so much resistance. The inconvenience of one or more terms at the Supreme Court with fewer than nine justices—even through an intervening midterm election—pales in comparison with the repercussions of making a bad selection. It’s worth the fight, and worth the wait. And this fight may become much easier. Traditionally, presidents had to ensure their judicial nominees would meet a 60-vote threshold to overcome a filibuster. However, in 2013, Senator Harry Reid triggered the so-called nuclear option, which eliminated the filibuster for the appointment of lower court judges, but preserved it for the Supreme Court. It is delusional to imagine that the Democrats will stick with this limit if they retake the Senate and have the opportunity to confirm the next justice. Senate Republicans are fools if they unilaterally preserve the filibuster only for justices nominated by Republican candidates. Republican candidates need to make their views on this clear.
2. Paper trails are an asset, not a disqualification
The dynasty project is not faring well. Two relatives of three of our most recent presidents have faced early woes in their succession plans, despite layers of aides, networks of backers going back generations, and extravagant levels of cash. On June 11, a front-page story in the Washington Post described the first six months of Jeb Bush’s campaign as a “political operation going off-course, disjointed in message and approach, torn between factions and more haphazard than it appeared on the surface . . .
Later this summer the Supreme Court will decide whether the Constitution requires that every state recognize same-sex marriages. Thus, in a ritual that would seem bizarre if it had not become so ordinary, nine lawyers will issue a decision authoritatively resolving subtle and far-reaching issues that are not distinctively legal. After all, the ancient institution of marriage implicates difficult questions about history, culture, psychology, and morality.
On September 4, 2014, as the NATO summit convened in Wales, President Barack Obama and Prime Minister David Cameron coauthored an op-ed in the Times of London. Its headline: “We will not be cowed by barbaric killers.” On January 15, a mere four and a half months later, the same coauthors had the good fortune to have another submission accepted by that august paper. Its headline? “We won’t let the voice of freedom be muzzled.”
"If today’s extremist rhetoric sounds familiar, that’s because it is eerily, poignantly similar to the vitriol aimed squarely at John F. Kennedy during his presidency. And just like today, Texans were leading what some of them saw as a moral crusade. To find the very roots of the paranoid right of 2013, just go back to downtown Dallas in 1963, back to the months before the Kennedy assassination. It was where and when a deeply angry . . .” (Bill Minutaglio, Washington Post, November 21).
As Americans pause to mark the 50th anniversary of the assassination of President John F. Kennedy, they should not overlook the other fateful assassination that took place that same month. On November 2, 1963, South Vietnam’s President Ngo Dinh Diem was murdered in Saigon in a coup carried out by a group of generals operating with the tacit approval of the U.S. government.
John Forbes Kerry is one of those upper-middle-class East Coast types of estimable lineage and impeccable credentials (St. Paul’s, Yale, U.S. Navy) whose tribal habits were the subject of the late sociologist E. Digby Baltzell (The Protestant -Establishment, Puritan Boston and Quaker Philadelphia, etc.). Baltzell popularized the term WASP (White Anglo-Saxon Protestant)—-although Kerry is Roman Catholic, not Protestant—and explored the historic WASP ascendancy in American business, education, cultural institutions, and government.
The Sunday after Kennedy was shot my dad and I drove downtown to Dealey Plaza. It was an apology of sorts since my parents had refused to let me skip school to see the presidential motorcade on November 22. We were standing on the grassy knoll between the Old Red Courthouse and the Triple Underpass when our neighbors from across the street—a man and his teenage son my age—walked up with a noose and began exhorting bystanders to go lynch Lee Harvey Oswald.
The 50th anniversary of the assassination of President Kennedy is nearly upon us, and it feels as if Camelot has returned like Brigadoon. Many a navel is currently being gazed upon in the media in an attempt to wring some contemporary meaning out of JFK’s tragic end. Some of this was inevitable—the shelves of The Weekly Standard’s book section are straining under the weight of the latest conspiracy tomes—but an unsettling amount of the commentary has amounted to taking an American tragedy and using it as an excuse for partisan jeremiads.
For a brief moment last week, The Scrapbook felt a twinge of compassion for President Obama. The setting was Berlin. Readers will remember the extraordinary (and extraordinarily peculiar) sight in 2008 of Democratic presidential candidate Barack Obama speaking to a throng of 200,000 worshipful Berliners in the Tiergarten. No American candidate had ever before campaigned in a foreign country—especially one where spectacles of mass enthusiasm revive instructive memories.
President Obama, speaking earlier today at conference on mental health at the White House:
"There are other people who are leading by example. My great friend, Patrick Kennedy, when he was running for reelection back in 2006, he could have avoided talking about his struggles with bipolar disorder and addiction. Let’s face it, he’s a Kennedy," said Obama.
It has become increasingly clear that the Obama-era Democrats view every major societal event as a new invitation to spend money, centralize power, or both. The horrendous shootings in Connecticut have the Democrats lobbying not only for new legislation, but new federal legislation — and hence more federal power — rather than entrusting the passage of any such legislation to the states. Meanwhile, the damage from Hurricane Sandy has the Democrats looking to do the only thing that they might enjoy even more than enacting cumbersome legislation — spending borrowed money.<