"GEOGRAPHY was a prime consideration in the appointment of...

May 23, 1994|By THEO LIPPMAN JR.

"GEOGRAPHY was a prime consideration in the appointment of Supreme Court justices throughout the 19th century." -- "Congressional Quarterly Guide to the Supreme Court."

Geography was so important to George Washington, in the 18th century, that when he named all the justices to the first Supreme Court, he did a perfect balancing act. His six justices (the total then) were from six different states; three were Southerners, and three were not.

This commitment to geo-jurisprudence continued not only through the 19th century but well into the 20th. It is weak today, but it probably kept Bruce Babbitt off the Supreme. In two ways.

He is an Arizonan. Used to be governor. There are already two Arizonans on the Supreme Court. Chief Justice William Rehnquist was born in Milwaukee, but moved to Phoenix to practice law when he was 30 years old. Sandra Day O'Connor was born in Texas but settled in Phoenix in her late 20s.

The second way geography hurt Babbitt is that though an Arizonan he is unpopular in the conservative West. As secretary of the Interior, he has made many enemies with some of his policies regarding timber, mining and ranching. His appointment the court could have cost President Clinton in the West in 1996. In 1992 Clinton won more Western states than any recent Democrat. He'll have trouble holding them because of Secretary Babbitt and would have had even more trouble if there were a Mr. Justice Babbitt.

There were three justices from the same state on the Supreme Court just once -- during the period 1932-1938. In 1932 Herbert Hoover named Benjamin Cardozo of New York to the court. The chief justice at the time was Charles Evans Hughes of New York, whom Hoover had named two years earlier. One associate justice was Harlan Fiske Stone of New York, named by President Coolidge in 1925.

The most unusual feature of the Cardozo nomination, demographics-wise, was that he was Jewish. There had not been a Jewish justice in the first 125 years of the court's history. Woodrow Wilson named Louis Brandeis to the court in 1916, and he was still there in 1932.

Cardozo, not Brandeis, established "the Jewish seat" on the court. Cardozo was replaced by Felix Frankfurter, who was replaced by Arthur Goldberg, who was replaced by Abe Fortas, who was replaced by Harry Blackmun. Before you say, "funny, he doesn't look Jewish," he isn't. President Nixon broke the tradition of the Jewish seat.

Bill Clinton re-established it either with his nomination of Ruth Bader Ginsburg last year, in replacing Byron White, or in naming Stephen Breyer to replace Blackmun. Clinton is the first president ever to name two Jewish justices.

Maryland hasn't had a justice in 130 years. Before you say, "Thurgood Marshall," Marshall was born in Baltimore, but he had the curator of the Supreme Court list his "state appointed from" ++ as New York.

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