Geer Box
The nomination of Brett Kavanaugh to the Supreme Court has been examined from every angle. Acute. Obtuse. Crazy. You get the idea.
Is this another chapter in the litany of #MeToo allegations and accusations? Is it another round in the eternal battle of liberal vs. conservative, left vs. right, red vs. blue, ad infinitum, ad nauseam? Is it time for any man who ever did anything shady, from that bongo-banging frat party in 1974 to last week’s wild night at Fast Eddie’s, to confess all and plead for mercy?
Relax. It’s politics as usual. Without exception, the opposing party will do everything in and out of its power to thwart an attempt for a new president to replace a retiring Supreme Court justice with one who agrees with his line of thinking.
Since 1968, 27 men and women have been nominated to the high court: seven by Democrats, 20 by the Republicans. Four of those were withdrawn; three were rejected. Clement Haynsworth, G. Harold Carswell (in the Nixon years) and Robert Bork (Reagan’s choice) were all nominated by Republican presidents and rejected by Democratic Congresses. Two years ago, Barack Obama’s nomination of Merrick Garland lapsed during a GOP-majority Congress.
Politics as usual. It could be worse. Much worse.
In 1933, during his first inaugural address, President Franklin D. Roosevelt solemnly intoned that “the only thing we have to fear is ... fear itself ... nameless, unreasonable, unjustified terror that paralyzes needed attempts to turn retreat into advance.” Four years later, he had much more than just “fear” to fear.
Despite his landslide re-election in 1936, the Supreme Court had ruled many of FDR’s New Deal proposals unconstitutional. Then came a 1937 5-4 ruling upholding a minimum-wage law in Washington state. (Nothing new there, either.) The swing vote came from Associate Justice Owen Roberts, who, up to then, had actively opposed the New Deal agenda. Then, as now, some implied Roberts’ arm had been twisted, if not wrenched out of its socket.
So, FDR devised what was called the Judicial Procedures Reform Bill of 1937. The idea was, on the surface, simple enough: His proposal would add a new justice to the court each time a justice reached age 70 and failed to retire. In 1937, seven of the nine justices dated back to the administration of William Howard Taft.
There! An easy, if sneaky way, to pack the court in favor of the New Deal.
Meanwhile, Senate Judiciary Committee chairman Henry F. Ashurst took a different approach: “No haste, no hurry, no waste, no worry ... that is the motto of this committee.” No haste, no hurry, indeed. The bill was held in committee for 165 days, where it ultimately died ... as did its main supporter, Senate Majority Leader Joseph T. Robinson. As it turned out, retirements and deaths allowed FDR to pick the judges he wanted without resorting to political shenanigans.
Just imagine how long it would take to replace Supreme Court justices if you had to nominate up to 15 candidates.
Scary, no?