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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