. . . and the Next Justice

November 18, 1991

Some Washington court watchers say there is likely to be another Supreme Court vacancy at the end of this term. It is not too early to think about filling it.

Some Senate Democrats, embarrassed by their performance on the Clarence Thomas nomination, say they are reviewing their half of the process. Some Republicans say there is no need for the White House to review its half. But there is. If the next vacancy is caused, as anticipated, by retirement of the court's sole Democrat, Justice Byron White, or its sole liberal, Justice Harry Blackmun, it will present President Bush with an opportunity to do the unusual -- but something most previous presidents have done in certain circumstances. Be non-partisan. Doing the unusual can take a good bit of time and preparation.

This Supreme Court is getting uncomfortably -- some say dangerously -- partisan. The last 11 successful nominations were made by Republican presidents, and 10 of those nominees were Republicans. The exception was Richard Nixon's choice of Lewis Powell. That is the sort of non-partisanship President Bush ought to emulate next time. Justice Powell, a moderate and a nominal Democrat, was in our view and that of many observers the best of Mr. Nixon's Supreme Court nominees.

President Dwight Eisenhower also chose a Democrat for the court -- Justice William Brennan, generally rated as one of the best justices of his time. President Herbert Hoover nominated Benjamin Cardozo, a Democrat and a giant of the court. Modern Democratic presidents have not been non-partisan in their nominations, but Franklin D. Roosevelt elevated a Republican justice, Harlan Fiske Stone, to the chief justiceship.

What motivated these presidents? President Eisenhower, for example, wanted to show an affinity with Mr. Brennan's fellow Catholics, especially union members, who tended to be Democrats. President Roosevelt wanted to be seen as a national leader on the eve of war. Politics, to be sure. But in such cases, the court was enhanced as a national, non-partisan institution. This is important. Just as Americans in a vague (but non-quota) way like to see geographic, philosophic, ethnic and religious diversity on the court, so, too, do they like reassurance that appointments to the one branch of national government not directly responsive to public opinion are free of narrowly based partisanship.

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