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Until
today, I’d kept quiet on the issue of Supreme Court nominations.
In the case of our new Chief Justice, John Roberts, I was going
to complain from the standpoint of the mistaken belief that becoming
Chief was usually preceded by some dues-paying time as an Associate
justice, and here he is, going straight to the top. However, a little
digging at Wikipedia proved
this wasn’t so, and I’m glad I didn’t put my foot in it – but
more on that later.

I
could see where the untimely death of Rehnquist would give Bush
a golden opportunity to place his stamp on the bench, and, disappointingly,
most of the Senate fell into line. But again, that’s a separate
topic.

What
finally sent me over the edge was today’s announcement of Bush’s
new
nominee to replace Sandra Day O’Connor
, Harriet Miers, someone
whose entire career has been nothing more than that of political
operative and water carrier, with no judicial experience of any
kind. This had me thinking of the Roman emperor Caligula, who was
alleged
to have appointed his favorite horse a consul
. (The parallels
of the misadventures of certain mentally unstable Roman emperors
with the Bush Administration are too delicious to ignore.)

Of
course, it wouldn’t be the first time Bush has promoted people utterly
unqualified for their jobs. The case of Michael
Brown
, as head of FEMA, is now a classic in the annals of Bush
Blunder. Ms. Miers, while once being touted as a "pit
bull in size-6 shoes,
" has never been a judge, never argued
a case before the high Court, and never been other than a Bush loyalist
who is now getting rewarded for that loyalty.

But
Bush’s off the cuff description is an insult to pit bulls, and I’m
sure I’m not the only one to find it mildly disturbing that Bush
would know her shoe size.

But
all of this raises the more fundamental question of how does one
really Qualify to be a Supreme Court Justice, or Chief Justice of
that court? We all may make certain assumptions without really thinking
about them – I know I did, and I intend to correct them here.

According
to Wikipedia:

"The
Constitution does not explicitly establish any qualifications
for Justices of the Supreme Court. However, Presidents normally
nominate individuals who have prior legal experience. Typically,
most nominees have previous judicial experience, either at the
federal or state level. Several nominees have formerly served
on federal Courts of Appeals, especially the Court of Appeals
for the District of Columbia Circuit, which is often considered
a stepping stone to the Supreme Court. Another source of Supreme
Court nominees is the federal executive branch—in particular,
the Department of Justice. Other potential nominees include members
of Congress and academics. On the current Supreme Court, seven
Justices previously served on federal courts (including three
on the D.C. Circuit); two served on state courts; three were former
law school professors; and three held full time positions in the
federal executive branch.

Nominees
to the Supreme Court, as well as to lower federal courts, are
evaluated by the American Bar Association’s Standing Committee
on Federal Judiciary. The panel is composed of fifteen federal
judges (but not Supreme Court Justices), including at least one
from each federal judicial circuit. The body assesses the nominee
"solely to professional qualifications: integrity, professional
competence and judicial temperament," and offers a rating
of "well qualified," "qualified," or "not
qualified." The opinions of the committee bind neither the
President nor the Senate; however, they are generally taken into
account."

So,
after reading that, I decided to do some more digging. As there
have been over 100 Supreme Court Justices, appointed over our nation’s
history at an average of one every 22 months, time did not permit
me to look at the rsums of all of them – so I concentrated
on the Chief Justices, as there have only been 16, prior to the
current one.

The
first three, John
Jay,
John
Rutledge
, and Oliver
Ellsworth
all served with distinction in the Revolution, were
accomplished jurists, helped draft the Constitution, and Ellsworth
was the first Senator elected from Connecticut. They clearly earned
their positions via their service.

John
Marshall
(appointed 1801): Revolutionary, diplomat, jurist.
A Congressman from Virginia and Secretary of State under John Adams
before being appointed. He was the first to stamp the court with
the authority of "judicial review" of laws, in the landmark
Marbury vs. Madison decision. His 35-year tenure was the
longest. However, once we leave the "Revolutionary generation",
things begin to take a decided turn.

Roger
Taney
(appointed 1836): This was a political appointment by
Andrew Jackson to reward loyalty. A leader of the Federalist party,
Attorney General of Maryland, then US Attorney General, he also
served a brief stint as Secretary of the Treasury, where he helped
Jackson in his war against the Second Bank of the United States
(an area where many hard-money libertarians might consider him a
hero). He drafted Jackson’s veto message for renewal of the Bank’s
charter. But when William Duane, Jackson’s Secretary of the Treasury,
refused to withdraw the federal government’s deposits, Jackson appointed
Taney in his place, who then promptly carried out Jackson’s order.
This, historians say, helped bring about the "Panic of 1837".
The Senate was unforgiving, and refused to confirm Taney’s re-nomination
to the position, the first time in history the Senate failed to
approve a cabinet nominee.

Salmon
P. Chase
(appointed 1864): Senator from Ohio (Free Soil Party),
Governor of Ohio, and Secretary of the Treasury under Lincoln, where
he was tasked with the design of the first federal paper currency
– many of the denominations were adorned with Chase’s
own face
. Assumed to be another appointment for political loyalty.

Morrison
Waite
(appointed 1874): First a Whig, then a Republican; a jurist,
served briefly in the Ohio state senate. His term dealt mostly with
interpretations of the 13th, 14th and 15th Amendments.

Melville
Fuller
(appointed 1888): Jurist, minor figure in Illinois politics;
a presumed political appointee by Grover Cleveland.

Edward
D. White
(appointed 1910): Here’s one that actually came up
through the ranks. He was studying law in the North when the War
Between the States broke out. He returned to his native Louisiana
to enlist, rose to the rank of Lieutenant before being captured
in battle. He became a lawyer during Reconstruction, was elected
to the state senate, became an associate justice of the Louisiana
supreme court, and then became a US Senator. Grover Cleveland made
him an Associate Justice in 1894, and William Howard Taft made him
Chief Justice in 1910.

William
H. Taft
(appointed 1921): Assoc. Judge 6th circuit appeals,
Governor-General of Philippines, Sect’y of War under Teddy Roosevelt,
then 27th President, but lost his second term bid to Woodrow Wilson.

Charles
E. Hughes
(appointed 1930): Governor of NY, Assoc. Justice,
Sect’y of State under Warren Harding and Calvin Coolidge. Led fight
against New Deal legislation as unconstitutional.

Harlan
F. Stone
(appointed 1941): Attorney General under Coolidge,
Assoc. Justice, appointed Chief by FDR. Presumably he was a compromise
candidate, after FDR was accused of trying the stack the court to
approve of all his New Deal legislation in the 1930′s.

Fred
M. Vinson
(appointed 1946): State Rep from Kentucky, he sat
on the federal bench from 1937, appointed Chief Judge to US Emergency
Court of Appeals, 1942. As Sect’y of Treasury under Truman, he was
responsible for the creation of the IMF and Bretton Woods accords.
He was a lifelong friend (and poker buddy) of Truman.

Earl
Warren
(appointed 1953): District Attorney in California, CA
Attorney General, and Governor of CA, where he supported internment
camps for Japanese Americans; ran for VP with Dewey in ’48, appointed
Chief Justice by Eisenhower, who later claimed the decision "was
the biggest damned fool mistake I’ve ever made in my life",
as Warren proved to be far less conservative than everyone thought.
He set the tone for "making law from the bench", beginning
with Brown vs the Board of Education, and also led the controversial
"Warren Commission" to investigate the JFK assassination.

Warren
Burger
(appointed 1969): Lawyer, law school professor, Asst.
Attorney General under Eisenhower, appointed by Eisenhower to US
Court of Appeals DC Circuit. He was appointed by Nixon to Chief
Justice in 1969 as a "strict constructionist" – but,
as with Earl Warren, he proceded to fail to live up to his benefactor’s
expectations – instead making very "judicial activist"
decisions on topics such as school busing and the death penalty.
He voted with the majority on Roe v Wade, and later rejected
Nixon’s privacy arguments in the Watergate tapes. But in 1983, in
a view that could be interpreted as out of character, he dissented
from the Court’s holding in the case of Solem v. Helm, that
a sentence of life imprisonment for issuing a fraudulent check in
the amount of $100 constituted cruel and unusual punishment.

William
Rehnquist
(appointed 1986): Lawyer, clerked for Justice Robert
Jackson, wrote a memo in 1953 defending "separate but equal"
during Brown case; when asked to explain, he claimed he was
merely reflecting Justice Jackson’s views, not his own. However,
Jackson voted with the rest of the Court in the unanimous Brown
decision. Encouraged to withdraw to private practice, he was an
aide to Barry Goldwater and an Arizona Republican operative until
1969. He was accused of discouraging minority voters in Arizona
as a "poll watcher". He became first an Asst. Attorney
General, then an Associate Justice under Nixon in 1971. He wrote
the dissenting argument in Roe, appointed Chief Justice by
Reagan, and in 2000 wrote the concurring opinion in Bush v. Gore.

As
you can see from this history, there is no clear pattern one can
discern that shows boldly the path one must follow if one is to
become an Associate or Chief Justice. The path has always been marked
with opportunism, connections, rewards for loyalty, and other political
chicanery. But as history unfolded, there was one pattern
that one could plainly see: that which ultimately led to a political
"litmus test" for court nominees. It began after the FDR
appointments in the 1930′s, and has grown worse from each administration
to the next, until today, the Court sits in danger of having "Caligula’s
horse" as one of its members.

October
5, 2005

Thomas
Andrew Olson [send him
mail]
is a New York-based systems engineer, writer and
speaker, whose topics range from technology and the future to politics
and policy.

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