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John M. Broder: Have a Seat, Your Honor (Presidents Wish It Were That Easy)

Roundup: Media's Take




John M. Broder, in the NYT (7-10-05):

WHEN Chief Justice Salmon P. Chase died in 1873, President Ulysses S. Grant did not want to waste time naming a successor. He offered the job to Roscoe Conkling, the mercurial senator from New York, in the carriage ride to Chief Justice Chase's funeral.

Mr. Conkling turned him down, which may have been a good thing, as he proved to have something less than a judicial temperament. He resigned his Senate seat in 1881 in pique over federal appointments in his state, then ran unsuccessfully to fill the vacancy caused by his own resignation.

Grant offered the Supreme Court job to six others before settling on Morrison R. Waite, a little-known lawyer from Ohio who was confirmed in 1874 and went on to serve 14 undistinguished years as chief justice.

The Waite appointment is a case study in one of the many ways not to appoint a justice and an object lesson for President Bush as he seeks to fill the seat of Justice Sandra Day O'Connor and, perhaps soon, that of Chief Justice William H. Rehnquist, says Michael J. Gerhardt, a professor of law at the University of North Carolina. Professor Gerhardt said that rushing the process was one of the many blunders presidents made in deciding on the most important appointments of their presidencies.

"The whole process made Grant look bad and made his ultimate nominee look like a desperate choice," said Professor Gerhardt, who served as an adviser to the Clinton White House during the confirmation of Justice Stephen G. Breyer in 1994.

He might well have been talking about the way President Bill Clinton handled his first vacancy on the Supreme Court, barely 60 days after he took office in 1993, when Justice Byron R. White announced his resignation. Mr. Clinton said he wanted a nominee with a "big heart" and real-world experience about whom the whole nation would exclaim "Wow!" He conducted a painfully public three-month search, in which he dangled the job before Gov. Mario M. Cuomo of New York, Senator George J. Mitchell of Maine, Interior Secretary Bruce Babbitt and others before finally settling on a safe choice in Ruth Bader Ginsburg.

Justice Ginsburg has proved to be a respected moderate-to-liberal voice on the court, but the process of her selection was damaging to President Clinton, leaving the impression he was a waffler and his administration chaotic.

But the Ginsburg appointment was a shining success compared with other nominations that have gone down in flames, and even a few that have succeeded. It would be easy to compile a catalog of how presidents have blown their picks.

A critical and often-repeated mistake is poor vetting of the personal or judicial record of the nominee. Judge Douglas H. Ginsburg was an otherwise well-qualified candidate in 1987, until it was revealed that he had smoked marijuana in his youth.

Lyndon B. Johnson committed a classic error in trying to promote his crony and confidant, Abe Fortas, from an associate justice's seat into the chief justice's chair in 1968. The nomination touched off investigations of Mr. Fortas's business dealings that led to his departure in 1969, opening the seat for a new president, Richard M. Nixon.

Nixon hit the daily double of vetting mistakes with his first two choices to fill the vacant Fortas seat. Clement F. Haynsworth was shot down for conflicts of interest and G. Harrold Carswell was rejected for legal mediocrity and segregationist views. Harry A. Blackmun got the seat....


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