Final decision on naming a Supreme Court...


June 21, 1993|By THEO LIPPMAN JR.

BILL CLINTON'S final decision on naming a Supreme Court justice came down to a choice between two federal court of appeals judges. Eisenhower's Revenge.

Democratic presidents have usually chosen justices from the ranks of politicians and ex-politicians, not from the ranks of judges.

In this century, Democratic presidents have nominated 20 justices, only three of whom were judges at the time. Even Republicans before Ike usually chose non-judges. Of 16 Republican-picked justices 1900-1953, four were federal judges and three were state judges.

Ike was elected in 1952. In 1953 Chief Justice Fred Vinson died. He was a Harry Truman appointee who had been an appellate judge for five years, but before that he was a member of Congress and after that an executive branch official. He was secretary of the Treasury when he was named to the Supreme Court.

Ike nominated California Gov. Earl Warren to replace Vinson. The court he began to preside over included three Truman and five Franklin D. Roosevelt nominees.

Four had been, like Warren, previously elected to political office. Hugo Black, Sherman Minton and Harold Burton had been U.S. senators. Stanley Reed had been a state legislator. Robert Jackson and Tom Clark had been U.S. attorney general. William O. Douglas was chairman of the Securities and Exchange Commission when he was picked. Felix Frankfurter, a former sub-cabinet official, came to the court from a professorship at Harvard Law.

So, a very political bunch. Only Minton had been a judge.

And this is the court that within a year had issued the most important, influential and positive Supreme Court decision since the Civil War -- if not ever.

That was Brown vs. Board of Education, which was the beginning of the end of state-sanctioned segregation and racial injustice in the nation. It is impossible to imagine what the United States would be like today without that ruling.

Eisenhower didn't want to make Warren chief justice. But he had promised him the first vacancy, not expecting Vinson, who was 62, to create it. In 1953 he wanted to give Warren the next vacancy, but Warren said a deal's a deal.

Brown was controversial then, but the court was unanimous, thanks to Warren's political skills and the other justice's political instincts.

Ike, who later referred to Warren as "that dumb son of a bitch," never again appointed a real pol to the Supreme Court. He made four more appointments, three U.S. appellate judges and one state judge.

The next Republican president, Richard Nixon, nominated six men to be justices, four of whom were U.S. court of appeals judges. Gerald Ford's one nominee, four of Ronald Reagan's five and both of George Bush's were also federal court of appeals judges. (Reagan's fifth was a state judge.) Of the five Democratic nominees since Warren only one was a judge. Till now.

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