The aging Supreme Court was but one motivation for Democrats to unify behind Barack Obama last fall, but it was a big one. In the next eight years, barring an unexpected death or retirement, "Court watchers" (as those of us who care about such things are called in the media) expect up to three vacancies among the tightly divided Supremes. I'm not sure anyone was counting Associate Justice David Souter, 69, as one of the three potential vacancies. But he is setting a good example for the legal world (not to mention all of us in the academic world) by not hanging around until he has to be scraped off the floor to write an opinion.
And so, we await Barack's first nominee.
As during the last ideological upheaval in 1980, the Obama administration is hinting that the next Associate Justice will be a woman, and probably for the same reason: to firmly suture "women" (a majority of whom support abortion, aka, "the right to choose") to a liberal/moderate political agenda. Leading nominees are majority, but not entirely, female; several are of color. My current fave raves are Sonia Sotomayor, Judge, U.S. Court of Appeals for the 2nd Circuit; Elena Kagan, Solicitor General, U.S. Justice Department; and Cass Sunstein. The Second is a strong route to the Court, so I would say Sotomayor is a leading contender; Kagan clerked for Thurgood Marshall and has just sailed through a confirmation hearing; and I love Cass Sunstein but -- aside from being a man which probably makes him a poor pick if you have already made gestures toward saying there should be more women on the court -- he is a liberal public intellectual, which means a nightmare confirmation hearing. There's nothing like having written a lot of smart books to get Jeff Sessions' back up (does anyone but me ever mistake the new ranking Republican on the Senate Judiciary Committee for Orrin Hatch? I find the resemblance uncanny.)
But let's get back to the nominating process itself, and the Ghosts of Conservatives Past which happen to be occupying my home office right now. Article Two of the Constitution (section 2, otherwise known as the "appointments clause" says that "The President may also appoint judges, ambassadors, consuls, ministers and other officers with the advice and consent of the Senate. By law, however, Congress may allow the President, heads of executive departments, or the courts to appoint inferior officials." If you are a conservative, you know where I'm heading, because you read the Constitution very carefully: but do the rest of you give up?
OK. Focus in on the word "may" -- it's the third word of the sentence, and what this implies is that while no one but the President is encouraged to submit a nomination, no person, or class of people, is prohibited from doing so either. In other words, this right does not belong exclusively to the President, even though we behave as though it does because it is, well, tidier and more practical to do it that way.
You can nominate a Supreme Court Justice too! This was what the Reagan administration had to come to grips with in 1981, since it was one of the several ways conservative outrage manifested itself against the nomination of Sandra Day O'Connor. O'Connor, you may recall, was nominated to fill a vacancy left by Potter Stewart (no relation to this blogger), a conservative shilly-shallier who first voted against the right to privacy and then changed his mind to vote for Roe and against the censorship of pornography. The choice of O'Connor, a nomination that fulfilled a Reagan campaign promise that his administration would oversee the appointment of the first woman Supreme Court Justice, at first seemed like a no-brainer.
But O'Connor, a stalwart Arizona Republican, was not acceptable to the right wing of the party because she was suspected of being "soft" on abortion and the Second Amendment. Not only did O'Connor refuse to say whether she would vote to overturn Roe v. Wade (White House aides pleaded with her, if she had to conceal this information, to at least say that she thought the ruling was "bad law," a Republican catch phrase by now) but she had missed an opportunity to cast a purely ideological vote against women's right to choose when serving in the Arizona State Legislature.
The Reagan White House went into gear to defend the nomination, but it was one of several issues that inflamed the conservative base against Reagan in the first summer of his presidency. As a letter that went out over the president's signature on August 3, 1981 explained to an enraged conservative foot soldier from Illinois named Marie Craven:
What actually happened occurred when [O'Connor] was a Senator in the state government. A bill had been passed by the Senate and sent over to the House calling for some rebuilding of the football stadium at the university. The House added an amendment which would have prevented the university hospitals from performing abortions. But the constitution of Arizona makes it plain that any amendment must deal with the subject of the original bill or it is illegal. For this reason, the Senate, including Mrs. O'Connor, turned it down.
Reagan then reassured Mrs. Craven of his own absolute opposition to "abortion on demand or whim or because we think the child is less than perfect." He also reassured her that the only exception he favored -- abortion to save the life of the mother -- fell under the constitutional right to self-defense, surely one of the more peculiar interpretations of the Second Amendment in the twentieth century.
In other words, the argument being made was that O'Connor was a superior candidate for the court because she had acted in the interests of upholding a strict reading of the state constitution. Not only was this crucial to the judicial temperament conservatives wished to see on the highest court (a philosophy that soon became colloquially known as "strict constructionism") but, as Reagan also pointed out to Mrs. Craven, were O'Connor to oppose abortion prior to being confirmed, she might be disqualified from any challenge to Roe that might come to the Supreme Court during her tenure.
I doubt that Mrs. Craven bought it, and neither did a lot of other conservative men and women, but Reagan's emphasis on separating the public interest (the law) from private morality (ideology) is an interesting window into policy tensions that were unresolved eight years later. Organized conservatives continued to press the president on school prayer, bussing, flag burning and a host of other issues that they sought to see resolved by executive order. Reagan's correspondent Marie Craven was from Illinois, epicenter of STOP ERA and Phyllis Schlafly's Eagle Forum. This is an important factoid, since in the coming weeks the White House was bombarded with letters, cards and telegrams, not only opposing the O'Connor nomination, but nominating Mrs. Schlafly herself as the next Associate Justice of the Supreme Court. "All my instincts tell me the O'Connor nomination could be a devastating blow to the Reagan presidency by tearing apart his supporters and friends," one desperate aide scribbled on the top of a telegram that questioned O'Connor's position on abortion and gun control.
The record also shows that Bob Dole helpfully nominated his wife, Elizabeth. As Director of Public Liaison, Elizabeth (soon to be the first woman Secretary of Transportation) was at that moment on the front lines of the attempt to control movement conservatives' threats to rip apart the party if the President did not enact, by Executive Order, what they were beginning to call a "values agenda."
Supporters and friends begged Reagan to withdraw the O'Connor nomination, citing the power of the grassroots conservative movement that claimed responsibility for his victory in the first place. Why, then, aside from appearing to be an administration adrift (which it was) was the nomination left standing despite the ideological issues at stake? A July 31 memo to the President has the answer: Mr. Conservative himself, Jesse Helms, agreed to withdraw his opposition to O'Connor, and had invited O'Connor to visit with the conservative Senate caucus that he chaired. And who was responsible for Helms' about face? Arizona Senator Barry Goldwater. Helms said he "expected to receive 'flak from other Senators,'if he supports the nomination," the memo reads, "but gave the impression that he is now leaning that way. Apparently Senator Goldwater has worked on Helms, because he mentioned that Barry had requested Helms' help with the nomination."
And guess what? Movement conservatives knew wha they were talking about: Sandra Day O'Connor was not reliable on abortion. Would the nominaiton have succeeded without the blessing of Jesse Helms? Who knows. But it is indisputable that he was critical to resolving this political crisis, and putting an Associate Justice on the bench who came to epitomize the Court's thoughtful center.
Cross posted at Cliopatria.
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