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07/11/2005: Thought for the Day:
As pundits discuss the impending battle over Supreme Court Justice Sandra Day O'Connor's successor, they keep lamenting how Ronald Reagan's 1987 failure to place Robert Bork on the court ushered in a baleful period of ideological conflict. We're told that in this "post-Bork era" we should expect another "Bork-style judicial confirmation fight." But the Bork battle was nothing new. Fighting over Supreme Court nominees is practically built into the Constitution. And an actively involved and sometimes obstreperous Senate has been the norm, not the exception, in our past.
Article II of the Constitution puts the power of judicial appointments into the hands of both the executive and legislative branches of government, all but guaranteeing tugs-of-war over the judiciary. Arguing for the ratification of the Constitution, Federalists maintained that an active Senate, charged with providing "advice and consent" on appointments, would check the power of the presidency. "If by influencing the president be meant restraining him, this is precisely what must have been intended," Alexander Hamilton wrote in Federalist No. 77. Or as Republican Sen. Orrin Hatch put it more recently, "We are not a rubber stamp."
The Senate of the 19th century was no rubber stamp. The politics of that period are known for their partisanship, and the judicial wars were no exception. Between 1789 and 1894, 22 of 81 Supreme Court nominees failed to reach the bench as a result of being either rejected, withdrawn, or left unacted upon by the Senate.
The first Supreme Court nomination battle came in 1795, when George Washington chose John Rutledge as chief justice. When John Jay resigned in July 1795, Washington named Rutledge to succeed him using a recess appointment. But when it came time to confirm him, the Senate, although dominated by Federalists loyal to the president, refused to do so—largely because Rutledge had spoken out against the controversial Jay Treaty, which settled a series of post-Revolution conflicts with Britain.
Many of Washington's successors, even the most powerful ones, faced similar defeats. Andrew Jackson, for example, failed to win the appointment of his longtime associate Roger B. Taney in 1835; the Senate was unhappy that Taney, while serving as Jackson's treasury secretary, had helped him kill off the Bank of the United States. (Jackson successfully renominated Taney the following year.)
And so it went for the remainder of the century....
--David Greenberg
Len on 07.11.05 @ 07:04 AM CST
