Supreme Court cronyism.

The history behind current events.
Oct. 5 2005 3:17 PM

Supreme Court Cronyism

Bush restarts a long and troubled tradition.

With cries of cronyism greeting the nomination of Harriet Miers to the Supreme Court, the White House is appealing to history—saying, in effect, that there's a long and distinguished tradition of cronyism in Supreme Court appointments. And they're right: From Andrew Jackson to Lyndon Johnson, many presidents have put their confidantes on the bench. But the White House claim omits a key fact. The practice of naming presidential pals began to wane decades ago, and, as John Roberts might say, the wisdom of avoiding cronyism is now a settled matter. The question is whether the Miers choice represents a one-time relapse or a harbinger of things 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. With democratization and party politics came the spoils system—a name derived from New York Sen. William L. Marcy's gloating remark, "To the victor go the spoils"—under which the party that wins an election doles out the rewards, including jobs, to its supporters. If such raw patronage strikes us today as unseemly, it appealed to populists like Andrew Jackson as a democratic reform—a blow against the aristocratic strains of the early republic. Of course, not everyone agreed.

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In distributing offices to friends, Jackson deemed the Supreme Court fair game. In his two terms he appointed six justices, many of whom had helped 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 the United States. After an angry Senate refused to confirm Taney as treasury secretary, Jackson vowed to strike back, and when a high court vacancy opened in 1835, he did. Although the Senate rebuffed Taney's nomination at first, Jackson got the last laugh, nominating his friend again later that year when Chief Justice John Marshall died. Taney served as chief justice for 28 years.

In time, Jackson's habit of naming friends to the bench became fairly routine. In 1862 Abraham Lincoln appointed David Davis, a brilliant Illinois 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 Matthews. Chester Arthur—who after a hacklike career surprised everyone as president by championing clean government—chose 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. (Though the Senate confirmed Conkling, he amazingly had the good sense to refuse to serve.)

In these years, no one presumed an iron wall should exist between the Supreme Court and party politics. Experience in elective politics or in other branches of government regularly preceded—and often coexisted with—judicial service. In the 20th century, however, Progressive ideas about good government, which relied on disinterested, professional expertise, helped to give partisanship a bad name and to redefine law as a sphere separate from, rather than adjacent to, politics. Although justices still counseled presidents on a range of matters, and presidents still placed 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. But nine years later Harry S. Truman was given hell—accused of rank favoritism—when he nominated to the high court his attorney general, Tom C. Clark (father of Ramsey), a political ally in several key fights. The next year Truman drew brickbats again for choosing former Sen. Sherman Minton, a close friend from his Senate days. Both nominations passed the Senate, though with an unusual amount of opposition for a time when deference to presidential prerogative reigned. Neither man went on to become an accomplished justice.

Although many recent justices have had loose ties to the presidents that nominated them, and both William Rehnquist and Sandra Day O'Connor cut their teeth as Barry Goldwater acolytes, the last justice who can fairly be called a crony—albeit a distinguished crony—was Abe Fortas. A former Yale Law School professor, a founding partner of the prestigious Washington firm Arnold, Fortas, and Porter, and an advocate before the high court, Fortas nonetheless owed his selection to his friendship with Lyndon Johnson, who in turn owed his 1948 Senate primary victory largely to Fortas' assistance.

Interestingly, no one cried cronyism when Johnson made Fortas an associate justice in 1965. Only three years later, when he tried to elevate the justice to chief, did the mostly conservative critics of the Warren Court and its liberal jurisprudence seize on Fortas' continuing contacts with the president as a reason 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 institution the public saw as above the fray of partisan politics.

The Fortas filibuster, in retrospect, was a death knell for cronyism in high-court appointments, at least until this week. For several reasons, presidents since the 1960s found it imprudent to turn to close advisers.

First, since that contentious time, the Supreme Court has adjudicated many of our culture wars, and much of the public has come to care deeply about how the body will rule on all those sensitive issues we hear about with each nomination fight. Moreover, since the Fortas filibuster, the Senate has grown emboldened about challenging the president's choices. In the first two-thirds of the 20th century, only one nominee failed to reach the bench, but now it happens often. 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, 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 of journalism and media studies at Rutgers University, worked at the New Republic in the early 1990s as an intern, as managing editor, and as acting editor.

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