www.slate.com/id/2127493
cries of cronyism greeting the nomination of Harriet Miers to th e Supreme Court, the White House is appealing to historysaying, in effe ct, that there's a long and distinguished tradition of cronyism in Supre me Court appointments. And they're right: From Andrew Jackson to Lyndon Johnson, many presidents have put their confidantes on the bench. The practice of naming presidentia l pals began to wane decades ago, and, as John Roberts might say, the wi sdom of avoiding cronyism is now a settled matter. The question is wheth er the Miers choice represents a one-time relapse or a harbinger of thin gs to come. Dismay about cronyism in America dates back to the 1830s, when government by the elite gave way to a more inclusive and contentious democracy. Wi th democratization and party politics came the spoils systema name deri ved from New York Sen. William L Marcy's gloating remark, "To the victo r go the spoils"under which the party that wins an election doles out t he rewards, including jobs, to its supporters. If such raw patronage str ikes us today as unseemly, it appealed to populists like Andrew Jackson as a democratic reforma blow against the aristocratic strains of the ea rly republic. In distributing offices to friends, Jackson deemed the Supreme Court fair game. In his two terms he appointed six justices, many of whom had help ed him politically in some fashion. Most controversial was his choice of Roger Taney, who had been a crucial ally in shutting down the Bank of t he United States. After an angry Senate refused to confirm Taney as trea sury secretary, Jackson vowed to strike back, and when a high court vaca ncy opened in 1835, he did. Although the Senate rebuffed Taney's nominat ion at first, Jackson got the last laugh, nominating his friend again la ter that year when Chief Justice John Marshall died.
In time, Jackson's habit of naming friends to the bench became fairly rou tine. In 1862 Abraham Lincoln appointed David Davis, a brilliant Illinoi s judge who had pushed Lincoln's Senate candidacy in 1858 and served as his campaign manager in 1860. Rutherford B Hayes nominated two men who had worked to secure his dubious election, John Harlan and Stanley Matth ews. Chester Arthurwho after a hacklike career surprised everyone as pr esident by championing clean governmentchose two meritorious justices, yet stumbled by naming his longtime sponsor, the former New York senator and political boss Roscoe Conkling, to a Supreme Court vacancy in 1882. Experience in elective politics or in oth er branches of government regularly precededand often coexisted withju dicial service.
Progressive ideas abo ut good government, which relied on disinterested, professional expertis e, helped to give partisanship a bad name and to redefine law as a spher e separate from, rather than adjacent to, politics. Although justices st ill counseled presidents on a range of matters, and presidents still pla ced their friends on the court, they now did so with less frequency and more difficulty. In 1939, Franklin D Roosevelt caught little flak for picking William O Douglas, his SEC chairman and sometime speechwriter.
Harry S Truman was given hellaccused of rank favoritismwhen he nominated to the high court his attorney general, Tom C Clark (father o f Ramsey), a political ally in several key fights. The next year Truman drew brickbats again for choosing former Sen. Both nominations passed the Senate, though wi th an unusual amount of opposition for a time when deference to presiden tial prerogative reigned. Although many recent justices have had loose ties to the presidents that nominated them, and both William Rehnquist and Sandra Day O'Connor cut t heir teeth as Barry Goldwater acolytes, the last justice who can fairly be called a cronyalbeit a distinguished cronywas Abe Fortas. A former Yale Law School professor, a founding partner of the prestigious Washing ton firm Arnold, Fortas, and Porter, and an advocate before the high cou rt, Fortas nonetheless owed his selection to his friendship with Lyndon Johnson, who in turn owed his 1948 Senate primary victory largely to For tas' assistance. Interestingly, no one cried cronyism when Johnson made Fortas an associat e justice in 1965.
to filibuster his nomination, which they did successfully. The prohibition against advising presidents on policy was a new stricture, which dozens of justices in the past had violated; the sudden outrage about it was mostly a smoke screen for conservatives . They didn't want to be seen as taking ideological aim at an institutio n the public saw as above the fray of partisan politics. The Fortas filibuster, in retrospect, was a death knell for cronyism in h igh-court appointments, at least until this week. For several reasons, p residents since the 1960s found it imprudent to turn to close advisers. First, since that contentious time, the Supreme Court has adjudicated man y of our culture wars, and much of the public has come to care deeply ab out how the body will rule on all those sensitive issues we hear about w ith each nomination fight.
As Fortas showed, undue closeness to the president hands ideological opponents an easy claim on which to ground their opposition. Also, as a consequence of the new strife in the confirmation process, pre sidents have sought to immunize nominees from charges of unfitness by ch oosing candidates with impeccable credentialsa strategy Bush followed w ith Roberts. Presidents (until Bush) turned to the American Bar Associat ion to bless candidates as "highly qualified," suggesting that merit was purely a professional quality, independent of ideology, that other prof essionals could best assess. Whereas Supreme Court justices once ran for president (as Charles Evans Hughes did in 1916) or freely dispensed par tisan political advice (as, for example, William Howard Taft did for Cal vin Coolidge), now the court was deemed to be wholly separate from party politics. Finally, too many recent presidents ran into trouble by picking mediocrit ies. Most famously, Richard Nixon, when he unsuccessfully nominated the egregiously pedestrian G Harrold Carswell, whose record Sen. Roman Hrus ka comically defended by stating, "So what if he is mediocre? There are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they? We can't have all Brandeises, Cardoz os, and Frankfurters and stuff like that there." With this debacle, the political calculus had shifted: Appellate judges and distinguished law p rofessors were in, and political pals were out.
as I've suggested before, that it may be leadi ng us into a period where politics is defined according to the old spoil s system rather than the technocratic assumptions ushered in by the Prog ressive Era. This administration has, after all, disdained independent n onpartisan expertisefor example, in belittling the arguments of environ mental science and in endorsing the teaching of religious accounts of hu man origins. It has politicized agencies once prized as nonpolitical, su ch as the CIA and the Corporation for Public Broadcasting. In the legal arena, the banishment of the ABA from the judicial selection process represents only the most obvious way that this White House has placed partisan loyalty over disi nterested professional authority. Cumulatively, all of this may well herald cronyism's return to the Suprem e Court appointment process.
Justices, Presidents and Senato rs, an indispensable source for much of this material. David Greenberg writes the "History Lesson" column and teaches at Rutgers University.
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