An Injudicious Trend

In 1932, the retirement of Justice Oliver Wendell Holmes Jr. gave President Hoover a vacancy to fill on the Supreme Court. The name of Benjamin N. Cardozo, chief judge of the highest court of New York, was suggested in legal circles. But Cardozo was a Democrat, Hoover a Republican. Cardozo was Jewish, and there was already a Jew on the court, Louis D. Brandeis. And there were already two New Yorkers, Harlan F. Stone and Chief Justice Charles Evans Hughes.

Hoover ignored the obstacles and appointed Cardozo, who was unanimously confirmed by the Senate.

That scenario seems like fairyland today. Political considerations have always played a part in the appointment process, but now they seem to dominate. Or, more accurately, ideological ones do. American politics have become far more ideological, and nowhere more intensely so than in filling vacancies on the Supreme Court.

Talk of possible vacancies is in the air now. Rumor has it that Chief Justice William Rehnquist and Justice Sandra Day O'Connor may go. And even before there is a vacancy, politicians and interest groups are staking out their demands.

The right-to-life movement is demanding that anyone nominated be committed against abortion, even to overruling Roe vs. Wade, the decision that a woman's right to choose an abortion is protected by the Constitution. Other conservatives want a vote against affirmative action. Senate Democrats indicate that they will fight any extremist choice.

Why has the Supreme Court appointment process become so politicized?

Part of the answer lies with the court itself. In the last 50 years, the Supreme Court has made decisions that changed the direction of society -- for example, on racial segregation. And, not least, the decision that made George W. Bush president.

Many of the important cases were decided by narrow majorities; 5-4 in Bush vs. Gore and others. No one can fail to see that fundamental choices for the country depend on who is on the Supreme Court.

The other important factor has been the ideological transformation of the Republican Party to a hard-edged force that includes such elements as religious fundamentalists. The moderates who used to play a large role in the party are reduced to a small rump.

In President Eisenhower's administration, the judicial appointment process -- which I saw close up as a reporter covering the Justice Department -- was largely non-ideological. Among Eisenhower's Supreme Court nominees were moderate Republicans Earl Warren, John M. Harlan and Potter Stewart and one Democrat, William J. Brennan Jr.