So what is new? Supreme Court nominations so often are political footballs, thrown back and forth by powerful, frequently self-serving interests in the country.
Maybe we have passed a milestone in this respect. President Barack Obama’s nominee for the present vacancy on the court, Judge Merrick Garland, is Jewish. I would be shocked even in the very spirited opposition to his confirmation, if anyone, raises this fact.
Such gentility hardly has always been the case. In 1916, President Woodrow Wilson nominated Louis Brandeis, a respected lawyer, and a Jew, for the court. It took months for his nomination to pass the Senate, and when at last a vote came, 22 senators voted not to confirm Brandeis, undoubtedly some moved by anti-Semitism. Forty-seven voted for him. He became the first Jewish associate justice.
Gradually, people began to speak of the “Jewish seat” on the court. Succeeding Brandeis was a series of Jewish justices, one after another, but only one at a time. President Bill Clinton broke this tradition in 1994 by naming the second Jew to the court. At present, regardless of the fate of the Garland nomination, three justices are Jewish.
Catholics did not have it much better. President Andrew Jackson named Roger Brooke Taney as an associate justice in 1835. The Senate voted against Taney. Anti-Catholicism was very evident. Stubbornly, Jackson sent Taney’s name back to the Senate in 1836, and that time Taney made it.
By 1900, it was commonplace to speak of the “Catholic” seat. Studiously, presidents, Democratic or Republican, saw that a Catholic, but just one at a time, served, until in 1988 President Ronald Reagan appointed Anthony M. Kennedy to be the second Catholic to serve on the court at the same time. Today, five Catholics are justices, down from six from 2009-2016. Maybe the religious test is gone.
Theoretically, the court is nonpartisan, but nominations often have political associations. When President Dwight Eisenhower nominated Governor Earl Warren of California to be chief justice in 1953, it was widely assumed to result from Eisenhower’s deal with Warren at the 1952 “brokered” Republican convention where Ike had to fight for the presidential nomination.
In the convention, Warren, the party’s 1948 nominee for vice president, literally ruled the large California delegation. Eisenhower promised Warren that if the California governor would come over to Eisenhower, Warren could name his reward. Warren supported Ike. Within a year, Chief Justice Carl Vinson died suddenly. Warren called the newly inaugurated President Eisenhower. The rest is history.
Past political views generate much steam when a candidate is nominated, assuming they show how the nominee will rule if confirmed, but as often, when seated, the justice surprises everyone. Associate Justice Hugo Black came to the court as a United States senator, but after having been active in the Ku Klux Klan. On the court, he championed civil rights for African-Americans. Republican Justices Sandra Day O’Connor and David Souter, named by Presidents Reagan and George H. W. Bush, were confidently expected to be pro-life. They were anything but.
O’Connor and Souter have retired, but still sitting Justice Kennedy, also once thought to be reliably conservative, hardly has been a friend of the right to life and traditional marriage.
In these political battles, nobody has been, or probably now is, as pure as the driven snow. Tremendous power is at stake. The social issues are one thing, but very compelling are questions of trade, employment and management, political advantage, and even foreign policy.
It will be interesting.
Msgr. Owen F. Campion is OSV’s associate publisher.