Supreme Court Cronyism
Bush restarts a long and troubled tradition.
Also, as a consequence of the new strife in the confirmation process, presidents have sought to immunize nominees from charges of unfitness by choosing candidates with impeccable credentials—a strategy Bush followed with Roberts. Presidents (until Bush) turned to the American Bar Association to bless candidates as "highly qualified," suggesting that merit was purely a professional quality, independent of ideology, that other professionals could best assess. Whereas Supreme Court justices once ran for president (as Charles Evans Hughes did in 1916) or freely dispensed partisan political advice (as, for example, William Howard Taft did for Calvin Coolidge), now the court was deemed to be wholly separate from party politics.
Finally, too many recent presidents ran into trouble by picking mediocrities. Most famously, Richard Nixon, when he unsuccessfully nominated the egregiously pedestrian G. Harrold Carswell, whose record Sen. Roman Hruska 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, Cardozos, and Frankfurters and stuff like that there." With this debacle, the political calculus had shifted: Appellate judges and distinguished law professors were in, and political pals were out.
Although it's obviously too soon to situate the Bush administration in history, it's possible, as I've suggested before, that it may be leading us into a period where politics is defined according to the old spoils system rather than the technocratic assumptions ushered in by the Progressive Era. This administration has, after all, disdained independent nonpartisan expertise—for example, in belittling the arguments of environmental science and in endorsing the teaching of religious accounts of human origins. It has politicized agencies once prized as nonpolitical, such as the CIA and the Corporation for Public Broadcasting. It has been unabashed about nepotism and cronyism. 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 disinterested professional authority.
Cumulatively, all of this may well herald cronyism's return to the Supreme Court appointment process. Especially if Harriet Miers is confirmed.
For this piece, and for other research I've done on Supreme Court nominations, I've consulted dozens of books and articles. I would like especially to credit Henry J. Abraham's book Justices, Presidents and Senators, an indispensable source for much of this material.
David Greenberg, a professor of history and media studies at Rutgers and author of three books of political history, has written the "History Lesson" column since 1998.