New Member of Supreme Court Brings More Than Just One Vote:"Every time a new justice comes to the Supreme Court, it's a different court," Justice Byron R. White liked to say, and he had reason to know. During a tenure of 31 years, he saw the arrival of 13 new colleagues. Each one, he said, made the court"a new instrument."
Supreme Court Nominees/Documents Released: Past administrations have gone both ways on the question of releasing documents from a nominee's work in the solicitor general's office. In his unsuccessful effort to win confirmation for a Supreme Court seat in 1987, Judge Robert H. Bork supplied some documents from his time in the solicitor general's office in the Nixon administration. But the Nixon administration refused to release documents from the solicitor general's office when it came to the nomination of William H. Rehnquist to the Supreme Court. Democrats have drafted an internal memorandum, titled"Past Nominees Have Been Forthcoming With Their Records," that says there is ample precedent for the Senate Judiciary Committee requesting and receiving sensitive documents. The memorandum says, for example, that when the committee considered the nomination of Mr. Bork, it was given internal memorandums and"nonpublic material" relating to Judge Bork's work in the solicitor general's office. And when Justice Rehnquist was nominated to the chief's position, the memorandum said, the committee was given an internal memorandum he wrote when he was a clerk to Justice Robert H. Jackson of the Supreme Court.
Past Supreme Court Justices:
It's good thing that John Roberts has been universally described as decent, funny, civil and fair, since he may be joining a court with a long history of pugilists, ideologues and misanthropes who have somehow made it past the U.S. Senate. Justice James Clark McReynolds, who served until 1941, was, in the words of historian David Garrow, a"drooling anti-Semite" who refused to speak with fellow Justices Louis Brandeis and Benjamin Cardozo or have his picture taken with them. Chief Justice Fred Moore Vinson was a glorified drinking buddy of President Harry Truman's whose sudden death was hailed by fellow Justice Felix Frankfurter as"the first indication I have ever had that there is a God." Justice Potter Stewart's friends said Stewart resigned partly because he couldn't stand Warren Burger any longer; Burger, he said, was like the show captain on an ocean liner who entertains passengers in the dining room while the real captain steers the ship.
Supreme Court Battle Raises Questions About Disclosure Rules:
For at least 34 years, Democrats and Republicans have staked out opposing positions on the question of whether a onetime Justice Department or White House lawyer, like John G. Roberts, should, when nominated to the Supreme Court, open up his government writings and recommendations to public scrutiny. As the history of Chief Justice William H. Rehnquist shows, no one position has consistently prevailed. During Justice Rehnquist's confirmation hearings in 1971, Richard M. Nixon's White House successfully asserted lawyer-client privilege to protect Rehnquist-written memorandums, including a 19-page criticism of the Warren Court's expansion of the rights of the accused, according to a 2001 book by John W. Dean III, the former White House counsel. Some 15 years later, with Justice Rehnquist awaiting confirmation as chief justice, the Reagan White House asserted that disclosure of the memorandums would violate"executive privilege" but then backed down.
Supreme Court Nominatons: "Of the 154 nominations to the U.S. Supreme Court between 1789 and 2004, 34 were not confirmed by the Senate," according to a recent study from the Congressional Research Service.
Supreme Court Nominations:
Senators from both parties say that when President Bush chooses a replacement for Justice Sandra Day O'Connor, he should break with recent tradition and nominate someone without judicial experience. President George Washington believed judicial experience was crucial, so his first nominees were former state judges. But in the past century, presidents relied more on political activists, elected officials or cronies. In the past 30 years, the pendulum swung back to Washington's approach. Presidents stopped nominating politicians and primarily nominated judges. They liked judges because they knew federal law and their judicial records were often more consistent than politicians' voting records, enhancing the chances for Senate confirmation. No one with congressional experience has been appointed to the court since Sherman Minton in 1949.
Supreme Court Justices and Their Health:
All senators should commit to a line of questioning that gets around the justices' proclivity for putting a"top secret" stamp on their own medical information. Officials in the other two branches of government routinely release sometimes-detailed health information. Vice President Dick Cheney, for instance, has disclosed details of his heart problems. President Bush issues summaries of his annual physicals. Condoleezza Rice released information about her treatment for uterine fibroids, noncancerous tumors in the uterus, last year when she was the nominee for secretary of state. In sharp contrast is the secrecy that Chief Justice William Rehnquist has maintained about his recent treatment for thyroid cancer, and how it may affect his performance on the court. Not surprisingly, legal historian David J. Garrow of Emory University found that a dozen justices stayed on the court for months or years during the 20th century with"mental decrepitude or mentally infirm judgment" that would have led to the speedy retirement of any corporate executive.
Supreme Court Fight:
If President Bush picks a Supreme Court nominee from outside the roster of sitting judges, he will be breaking with recent precedent and returning to tradition."You bet," the president said Wednesday morning when a reporter asked him whether he would consider potential nominees who did not have judicial experience. On the current court, only Chief Justice William H. Rehnquist had never been a judge before joining the court. He was serving in the Justice Department as an assistant attorney general when President Richard M. Nixon selected him in 1971. But until the recent past, it was common for Supreme Court justices to be drawn from the ranks of elected officials and distinguished lawyers who had never been judges.
Bork's Shadow Over the Supreme Court:
The beard is gone. Once scraggly and reddish, it had long since turned scraggly and white, and so finally he shaved it off."It was time to go," he said. But if the cleanshaven Robert H. Bork is no longer recognized and approached at airports, his image remains vividly etched in the minds of official Washington. Now 18 years after his fireworks-filled confirmation battle and crushing defeat in the Senate, the long shadow of Bork hangs over another pending court appointment. Remember Bork, both sides cry, with different messages in mind. The battle over Bork began July 1, 1987, when Reagan nominated him to succeed retiring Justice Lewis F. Powell Jr. Bork was already well known for his role in the"Saturday Night Massacre"; as solicitor general, he carried out President Richard M. Nixon's order to fire Watergate prosecutor Archibald Cox after two higher-ranking Justice Department officials refused and quit. Bork subsequently served as a federal appeals judge, making a mark as an"originalist" who believed in interpreting the Constitution as its framers intended rather than extrapolating it to fit changing circumstances.
Supreme Court Nominations:
Each time senators asked Sandra Day O'Connor about her views on a specific topic like abortion during her Supreme Court confirmation hearings in 1981, she looked down at a piece of paper that had been prepared for her and read,"I do not believe as a nominee I could tell you how I would vote." This response, known in the Senate as"taking the judicial Fifth," has been recited in one form or another by every recent Supreme Court nominee, and it is almost certain to be used this year by whomever President Bush chooses to replace Justice O'Connor.
Supreme Court Nominations:
Confirmation hearings for nominees to the high court only make matters worse, for the would-be justices are forced to sit before the cameras, under oath, as senators ask them questions they cannot ethically answer, on how they would vote on cases that might come before them. This process began not in the early Republic but in the battle over Jim Crow. In the 1950's, the Southern Democrats who controlled the Senate Judiciary Committee decided to require every nominee to appear in person in order to grill them about Brown v. Board of Education. Before Brown, it was almost unheard-of for a nominee to testify. When the Dixiecrats changed the rules, the liberal position was that inquiries about such matters as judicial philosophy posed a threat to the independence of the judiciary.
Sandra Day O'Connor:
Newsweek puts O'Connor on the cover and provides a history of her 24 years on the Supreme Court.