Supreme Court Justice David Souter recently announced his intention to retire. The decision from the relatively young (69 years old) jurist in good health was a surprise. Much speculation about Obama’s choice to fill the vacancy has ensued. Legal commentators were speculating whether Obama would choose a Hispanic (a first) or a woman (to join Ruth Ginsburg), and with Sonia Sotomayor, he has both.
Sotomayor comes from the ranks of the Federal Judiciary, particularly the U.S. Court of Appeals — the judicial tribunal just below the Supreme Court. (The Constitution, by the way, does not require that the Supreme Court justice be a lawyer, much less have judicial experience.)
Sometimes the president may have additional reasons other than a candidate’s legal qualifications in mind, such as political considerations that played a role in Obama’s selection of Sotomayor.
John Marshall, regarded by historians as the greatest chief justice, was probably picked by John Adams in 1801 to remove a Federalist competitor for president. Because of the electoral college’s failure to elect the president in 1800, the House of Representatives had to choose, and the Federalists in Congress preferred Marshall to the incumbent President Adams.
For like reasons, James Madison appointed a rival in his own party, John Quincy Adams, to the Court to shelve him. But Adams, despite his ratification by the Senate, turned down the appointment when news reached St. Petersburg, where he was a minister to the czar’s court.
David Souter was a surprise choice by President George H.W. Bush in 1990. His name figured in none of the advance speculation. He was an obscure state Supreme Court justice in New Hampshire. His name was pushed by White House Chief of Staff John Sununu, the former governor of New Hampshire.
But President Bush had been daunted by the rejection of Robert Bork, appointed in 1986 by Reagan. Yale professor Bork was considered, at least by the strict constructionists, as the most brilliant legal mind in the country, and he was defeated in a vicious campaign led by Sen. Ted Kennedy through innuendos, smears, and half-truths “as advocate of back-alley abortions and a return to segregation.”
The defeat of Bork occasioned a new verb — “bork” — meaning to defeat someone by character assassination. Unlike professor Bork, Souter had never lectured or written extensively, if at all, in law journals. The liberal left in the Senate could not pin anything on Souter. He was a “stealth candidate.” Sen. Arlen Specter, who would vote for Souter after voting against Bork, told me, “Choosing Souter was like choosing a pig in a poke.” But Souter, with the armor of anonymity, would be confirmed.
Souter, with presumably conservative credentials, would, as justice, join the liberal wing of the Court in his votes. His appointment had followed the resignation of the ailing Justice William Brennan, appointed by Republican Dwight David Eisenhower.
The selection of the leftist Brennan in 1956 is the most curious story in Supreme Court history, and it has never before reported. Brennan, like Souter, came from a state Supreme Court, that of New Jersey. His choice was recommended to Eisenhower by his attorney general, Herbert Brownell. This writer had the privilege of lunching often with the nonagenarian Brownell in New York in the early 1990s. Brownell was one of the greatest attorney generals, and he pioneered the Eisenhower administration passage of the first civil rights bill in 1957.
That same year he urged Eisenhower to send in troops to block Arkansas Gov. Orville Faubus from blocking integration of public schools in Little Rock.
As Brownell related to me, “In May 1956, I was scheduled to speak in Washington to the National Association of Attorney Generals at the Statler-Hilton in Washington. I left my office in the Justice Department a little late. I arrived to hear a brilliant advocacy of 'strict constructivism.'
"The speaker was explaining that the Court," said Brownell, "was the weakest branch of government: Unlike the executive branch, it had no sword, and unlike the legislative branch, it had no purse."
"In other words, the Court cannot send in troops,” said Brownell, “as I recommended to President Eisenhower to do in Little Rock.” Nor can the Court deny appropriation of moneys like Congress. For example, Brownell said that Brown v. Board of Education decreed in 1953 that school segregation was unconstitutional, but only a handful of public schools in the South have actually since integrated. Since the Court cannot enforce decisions, it cannot be far reaching in its decisions, since it must depend on the other branches of government to ensure compliance. “The Court,” said the speaker at the Conference of Attorney Generals, “should adjudicate not legislate. It cannot become a third legislative branch.”
“I went back to the White House extolling the merits of this state Supreme Court judge from New Jersey, William Brennan. ‘Mr. President, he’s a Democrat.’ ‘But in this election year , a Catholic Democrat from the East might be a smart political choice.’”
Brownell said, “Not until after Eisenhower had announced the selection was I informed that Brennan was only reading the prepared address of Chief Judge Alfred Vanderbilt, who was ill.” Vanderbilt was one of the greatest jurists in American history never to serve at the U.S. Supreme Court. “I had thought the speech was Brennan’s beliefs.” And that is how the most left member of the Warren Court was chosen by the conservative Eisenhower.
As Brownell said, “Jamie, I picked a leftist wolf garbed in the clothing of a conservative sheep.”
Professor James C. Humes, a former presidential speechwriter, once directed the Philadelphia Bar Association. He also served as a Woodrow Wilson Fellow at the Center for International Scholars of the Smithsonian.
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