Picking Supreme Court justices: the lost lesson

Here’s a good story that should have had a sequel.

About 100 days after he suddenly found himself president of the United States, Harry S Truman had to fill his first vacancy on the Supreme Court. In 1945, the Court was composed of seven Democratic appointees and one Republican.

Himself a Democrat, Truman naturally wanted to reward a member of his own party. He was said to have considered several possibilities, and the Secretary of Labor claimed that Truman had promised him the slot.

The Senate had a Democratic majority, though many Democrats were southern conservatives, often closely aligned with the Republicans. Truman’s advisors urged him to name a Republican, a move never before made by a Democratic president. He decided to follow their advice.

He finally settled on Sen. Harold H. Burton of Ohio. Burton had been a member of the Truman Commission, the watchdog body that fought wasteful military spending during World War II. Truman found him thoughtful and honest. Above all he supported the role of Congress in lawmaking and a limited role for the Court.

Burton, a former mayor of Cleveland was originally from Massachusetts and a Bowdoin College graduate. He was nominated and confirmed in a single day. The Democrats supported their president and the GOP supported a Republican. Above all, senators readily supported one of their own.

The new justice was no legal theorist, but he was an effective and respected jurist. Few would ever know that Chief Justice Earl Warren had allied himself with Burton, a long-time opponent of racial segregation. Together, they carefully forged the unanimous Court that ended school segregation and “separate, but equal.”

Fast forward to 2016. The sudden death of Justice Antonin Scalia created a vacancy on the Court. President Obama sought to replace the conservative justice with a more moderate jurist. But the Senate was controlled by Republicans who wanted to replace Scalia with an exact copy.

Obama nominated a highly qualified judge, but Senate Majority Leader Mitch McConnell told him face to face, that he would block any Obama nominee. He expected the GOP would win the presidency, though a Republican could not take office for about a year. He intended to keep the seat vacant until then.

While nobody doubted the qualifications of Judge Merrick Garland, Obama’s nominee, nobody could reasonably expect him to be confirmed. Obama was reluctant to retreat in the face of McConnell’s obstinacy. The White House seemed frozen.

This scenario worried supporters of the Court’s Roe v. Wade decision, which had affirmed that abortions are legal. With a new Scalia, the threat of the Court reversing that decision might remain a real possibility.

The problem was not about Obama refusing to back down. It was about his failure to try to outmaneuver McConnell. Obama was not Truman.

If Obama had followed Truman’s action, he might have ended up with a new justice who was favorable to Roe v. Wade. How?

Obama might have appointed a Republican senator to the Court. Alaska Sen. Lisa Murkowski is rated as a moderate who supports Roe. Her appointment would place on the Court its only justice without an Ivy League law school degree, which could add to her appeal. And it would be a first for Alaska.

Would McConnell block consideration of her nomination? Senatorial courtesy plus party loyalty would have virtually required him to let her enter the confirmation process. She would have access to make her case with her colleagues at any time, a privilege that was denied to Garland.

Allowing her to move the Court would have been a major boost for the GOP, which faces declining support from women.

If Murkowski had gone to the Court, she would have left one less appointment for President Trump to pick off the list of conservatives given to him. Even if he appointed a conservative when the next vacancy occurred, Murkowski could have become the swing vote on the Court.

Obama would have produced change, as he had promised. Even in the unlikely case Murkowski rejected the appointment or was denied confirmation, Obama would have made a gesture to provide the kind of cooperation that voters have said they want.

In the 2016 election campaign, the question of the Supreme Court vacancy faded from view, becoming a non-issue. If Obama had sought to appoint a Republican woman to the Court, he may well have enhanced the chances for his own party in the presidential and congressional elections.

Lacking this move, Harold Burton remains the only Republican appointed to the Court by a Democratic president.

Gordon L. Weil

About Gordon L. Weil

Gordon L. Weil is a former local, state, national and international organization official. He is an author and newspaper columnist.