Next justice should be a liberal

Robert A. Burt

October 14, 1991|By Robert A. Burt

IF PRESIDENT BUSH has another opportunity to appoint a Supreme Court justice, he should choose a liberal Democrat. And the Senate should refuse to confirm anyone but a liberal Democrat for the next vacancy. Powerful historical reasons lead me to this conclusion.

If Judge Clarence Thomas is confirmed, all but one of the justices on the court will have been appointed by Republican presidents (only Byron R. White was appointed by a Democrat, John F. Kennedy; the eight others were appointed by Republicans Richard M. Nixon, Gerald R. Ford, Ronald Reagan and Bush).

This uniform political complexion is a novel occurrence in the court's history. Since the beginning of the modern party system in 1828, there have been only 27 years (1872-88, 1909-13 and 1946-53) when the Supreme Court was composed of justices who all, or all but one, came from the same party.

Moreover, during 23 of those years, the president and U.S. Senate were controlled by the same party.

Accordingly, it is fair to assume that on those few prior occasions when a single party dominated Supreme Court appointments, this reflected the unified political attitudes in the country.

In fact, during most of our history, the presidency and the Senate have been controlled by the same party -- for all but 16 years from George Washington's presidency until 1953.

But since 1953, when Dwight D. Eisenhower took office, the presidency and the Senate have been controlled by different parties for 18 years; in all of those years, the presidents were Republicans and the Senate was Democratic. The modern Supreme Court thus has come to be dominated by Republican appointees during a time of prolonged, unprecedented party division between the president and the Senate.

In past times, it made sense to claim that the Senate should defer to the president's choice because the Senate typically was controlled by the president's party. In choosing a president and Senate of the same party, the American electorate had, in effect, indicated its intention that the Senate should be inclined to confirm the president's nominees.

But of the eight current justices appointed by Republican presidents, only two were confirmed by a Senate controlled by Republicans: Sandra Day O'Connor in 1981 and Antonin Scalia in 1986. This did not deter presidents Nixon, Ford, Reagan or Bush from claiming that the Senate, though controlled by Democrats from 1969-77 and after 1987, was still obliged to defer to their choice of Supreme Court nominees. But, unlike past presidents, these presidents had no electoral mandate to support this demand.

The Republican dominance of the current court is historically anomalous for another reason as well.

Jimmy Carter, the last Democratic president, had no opportunity to appoint a Supreme Court justice. This was more than ordinary bad luck among the many luckless aspects of Carter's presidency; it was virtually unprecedented. Only two other presidents in U.S. history had failed to make at least one Supreme Court appointment -- William H. Harrison, who died just 30 days after taking office, and Andrew Johnson, who would have appointed two justices except that the Congress -- as a prelude to launching impeachment proceedings against him -- reduced the size of the court to deprive him of the opportunity.

The 20 presidents before Carter who served one term or less (because they were not re-elected or died in office) appointed 38 justices. (Even James A. Garfield, who was assassinated six months into his term, made one appointment; and William H. Taft appointed five justices, a majority of the court, during his single term.) If history had repeated, Carter would have had at least one and most likely two appointments.

If Bush gets the opportunity to appoint another justice, he should follow the example set by Eisenhower. In 1956, when the Democrats controlled the Senate, Eisenhower nominated William J. Brennan Jr., a registered Democrat, to the Supreme Court. Bush may reject this precedent and continue to seek narrow partisan advantage in his subsequent court appointments. But the Senate is entitled and obliged to resist that course.

This is not because the Supreme Court itself should be a partisan institution. It is because the Senate -- both its Republican and Democratic members -- is obliged to protect the court against partisanship.

The dominance achieved by recent Republican presidents in Supreme Court appointments has created a partisan imbalance

on the court that is historically unprecedented and unjustified.

The Senate, moreover, should not permit the next nominee to evade ideological questions as Thomas did. The next nominee may refuse to answer questions to protect his impartiality, as Thomas did. But the Senate's more fundamental responsibility is to safeguard the impartiality of the Supreme Court as an institution; this impartiality is endangered by the court's current partisan imbalance.


Robert Burt is a professor at Yale Law School.

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