“Like An 800 Lb. Gorilla”

by Steve Woodman

Conventional wisdom states that every president fortunate enough to be re-elected (16 total) begins to imagine there’s enough room for another face on Mt. Rushmore and 30 to 6o days after his 2nd inaugural big plans are afoot to guarantee sympathetic treatment from future generations of historians. The best way to create an important legacy is to accomplish something of a lasting nature and one of the most popular and least successful strategies is to “stack the judicial deck” with judges certain to perpetuate a chief executives influence beyond his term of office. Mr. Bush’s “posse” has apparently bought into this fiction.

Since every federal judgeship is a presidential appointment it would seem an easy task, but 200+ years of history indicate otherwise. Our first C.E. George Washington made all judicial selections but was rebuffed by the senate when he attempted to “sneak” John Rutledge onto the court while Congress wasn’t in session. When the politicos returned to “Foggy Bottom” Rutledge was rejected and his subsequent nervous breakdown was a not too gentle reminder that congress will always “politicize” an unpopular appointment. This episode has long since been forgotten, but it was merely a preview of things to come.

A closer examination of US history reveals many episodes revolve around a balance of power theme involving federalism or a knock down battle waged between executive and Judicial with the justices playing the role of an
“800 lb. Gorilla who sleeps wherever he wants to”.

Another president who felt the sting of rejection was FDR in the 1930’s. Elected in the gravest constitutional crisis since the Civil War, his “Brain trust” put forth a radical set of proposals. Critics claimed would undermine not only the fundamental balance of power between the existing branches of government but capitalism itself. This horse and buggy court rejected key provisions of what became known as the New Deal Alphabet programs like the NRA and AAA. After being taken to task by even Justices Brandeis and Cardozo FDR bided his time until after his blowout re-election of 1936! Having carried all but 2 states (MA and Vermont) he unveiled his court “reorganization” plan. With 5 judges over age 70 Roosevelt proposed expanding (stacking) the court with additional appointments more in tune with his experimental/ bold philosophy. To accomplish this he dispatched his top persuader Tommy “the Cork” Corcoran to capital hill. FDR discovered even his best friends and party regulars “ran for political cover”. It can accurately be stated that FDR had setbacks but ultimately won the judicial war, but only because he was reelected 2 additional times, a luxury never enjoyed again by another chief executive.

Roosevelt’s successor was rebuked in 1947 during the post World War 2 era of commodities and housing shortages when railroaders and coal miners went on strike during the winter months, and in typical “give them hell” fashion the president threatened to jail the union leaders and draft the strikers into the armed forces. Confident in his actions Mr. Truman was “stabbed in the back” by his best friend Tom Clark whom he had recently elevated to the high court. He correctly concluded after Youngstown Steel case that “once you place a man on the court he ceases to be your friend!”

As the post war era continued other examples of Judicial independence would flower. Eisenhower’s choices of Earl Warren as (chief justice and associate William Brennan) seemed to guarantee a new era of strict constructionism in issues like civil rights and rights of criminal suspects. This illusion was quickly shattered when the justices struck down Plessey v Fergusion in 1954. The Brown decision was written by the same man who had encouraged the internment of Japanese-Americans while governor of California. Ike and other prominent Republicans were forced to act during the showdown at Central High in Little Rock, unleashing a political earthquake in the autumn of 1957. Ike once stated that the worst decisions he made as president were elevating these 2 to the high court. Warren “the activist” would surprise future presidents JFK, LBJ, and Richard Nixon with a series of landmark cases in criminal law beginning with Gideon and ending in 1966 with Miranda v Arizona. As it turns out the activist phase was just getting started.

At the swearing in of Warren Burger on June 23 1969 the most revealing moment came when the retiring Chief Justice looked directly at Nixon stating “We serve no majority. We serve no minorities. We serve only the public interest as we see it guided by the constitution and our own consciences”. Warren’s departure was followed by ruling’s supporting legalized abortions; court ordered school bussing and the abolition of capital punishment. Hardly the legacy of strict constructionism. Nixon’s plans to dismantle the Warren legacy continued to crash and burn in 2 cases the Pentagon Papers, and the US v Nixon which drove him from office in August 1974. This premature retirement to San Clemente blew apart the myth Nixon had depended on saving his presidency. In an 8-0 unanimous decision (with W. Rehnquist recusing himself) Nixon’s four horsemen did him no favors and gave him no mercy.In more recent times the Supreme Court his reaffirmed abortion rights, declared unconstitutional the item veto, Gramm/Rudman, balanced budget amendments, and Campaign Finance Reform not to mention the involvement in the 2000 electoral college fiasco.

One of the biggest surprises is the evolution of certain justices and their judicial philosophies. Sandra O’Connor was placed on the court in 1981 by Ronald Reagan and was expected to be a distinctly female but reliable conservative vote. As times have proven Justice O’Connor has moved to the center and become a swing vote no longer in lockstep with fellow Stanford graduate W. Rehnquist (class of 52)

In conclusion, court watchers and critics of Bush 43 warn that a 2nd Bush term will ruin the country for two generations when he appoints 3-4 new judges pledged to a strict interpretation of the constitution. At the same time the “Bushies” imagine a litmus test that will bar moderates like Souter, Kennedy, Breyer, from exercising a veto from a centrist position. But if history is any indication the court will continue to do as it pleases. While Neo-cons and liberals chase the same old myth, one that disrupted the New Deal, Vietnam War, item vetoes and all the rest. As Chief Justice Charles Evans Hughes once stated after their battles with FDR “the law means whatever we say it means.” The court seems destined to function (by design) as a body rather than as a group of nine individuals.