-David Ryden, Hope College
The repeated failure of Republican-appointed Supreme Court justices to hew to a reasonably conservative jurisprudence once on the bench is central to understanding the outsized role that ideological litmus tests have come to play in the Supreme Court selection process. Despite dominating the naming of justices to the Court in the latter part of the 20th century (including ten straight from 1969-1991), Republicans realized only modest success in reversing the historically liberal accomplishments of the Warren Court. Those who failed to live up to their Republican patrons’ expectations include liberal icons William Brennan and Earl Warren, the second and more insecure of the Minnesota twins Harry Blackmun (the author of Roe), and the reliably liberal New Hampshirite David Souter. One could add the wobbly swing voters Sandra Day O’Connor and Anthony Kennedy, both of whom became less dependably conservative the longer they served.
Another striking example of the phenomenon of wayward justices is John Paul Stevens, named to the Court by President Ford in 1975. As the third-longest serving member in the Court’s history, Stevens eventually came to anchor the Court’s liberal bloc. One would have expected some buyer’s remorse from Ford over the decision, but not so. At a tribute three decades into Stevens’ tenure, Ford contributed a written appraisal of his choice. “For I am prepared to allow history’s judgment of my term in office to rest if necessary exclusively on my nomination thirty years ago of Justice John Paul Stevens to the U.S. Supreme Court.” Some of this may be a president’s disinclination to admit his mistakes, but Ford consistently and repeatedly expressed his admiration for Stevens and took pride in the decision.
When Stevens retired in 2010, the New York Times described him as perhaps “the last Justice from a time when ability and independence, rather than perceived ideology, were viewed as the crucial qualifications for a seat on the Court.” Indeed, competency and qualifications typically served as a baseline threshold for successful Supreme Court appointments. Do the nominee’s credentials and experience show him to be equipped to handle the rigors of one of the most difficult jobs in government? On this front, Ford hit a home run with Stevens, whose credentials were impeccable . . . first in his class as an undergrad at the University of Chicago and at Northwestern law school (where he was thought to have recorded the highest overall GPA in the history of the school to that point), a Supreme Court clerkship with Justice Rutledge, founder of a distinguished private law firm, political experience in both Democratic and Republican presidential administrations, and five years of judicial experience as a federal appellate judge. No one could argue that Stevens was anything but supremely qualified for the High Court.
But the Times‘ characterization of the Stevens pick was surely too one-dimensional in light of history. FDR, Nixon, and other presidents who preceded Ford routinely took into account other considerations. One was common politics, that is the aligning of the nominee’s partisan loyalties and policy preferences with the president’s; another the compatibility of the justice’s philosophical and ideological commitments with those of the president. In this regard, Ford’s selection of Stevens was notable for the eschewing of party and ideology, factors which the administration went out of its way to minimize. According to Ford press secretary Ron Nessen, the administration did not know, and did not try to find out, Stevens’ party affiliation or his religious leanings; party fealty was simply not a consideration in the selection. Yet it would be a mistake to characterize Ford’s decision as devoid of politics. In fact, the Stevens nomination reflected a principled pragmatism grounded in a full appreciation of the unique political constraints Ford faced as an accidental president, as well as the higher political goal of repairing the country’s faith in the rule of law in the wake of Watergate.
The Court of Ford
Ford undoubtedly lacked the political capital that might have allowed for the generic court packing engaged in by virtually all presidents when they promote politically and ideologically like-minded jurists. The longstanding practice of senatorial deference to presidential appointments reflected the president’s status as the sole nationally elected officeholder, carrying with it the imprimatur of popular consent to govern in accordance with his stated politics, policies, and principles. Ford had no such mandate, having reached the White House only as the handpicked vice presidential replacement of the disgraced Spiro Agnew and then by virtue of his ascension via constitutional succession following Nixon’s resignation. As a critic pointed out at the time, “This appointment was made by a president who has not been elected to the presidency and who has never been elected to any office by a constituency larger than a congressional district.”
Ford’s approach to the Stevens selection exhibited a thorough grasp of the stark constraints imposed by the negative political environment in which the opening arose. Ford was hardly operating from a position of strength, with his approval ratings hovering around 40%. His pardon of Nixon had proved deeply unpopular, with many on both sides of the aisle questioning Ford’s integrity and wondering if the pardon was a quid pro quo that made Ford president. The first post-Watergate midterms had given the Democrats a 62-member working majority in the Senate, and the Democratically controlled Senate Judiciary Committee was armed for bear. Apart from Watergate, Nixon had thoroughly politicized the judicial nomination process, weaponizing the Warren Court and putting his nominees to an ideological purity test in the interests of burnishing his law-and-order bona fides with the public. The Judiciary Committee and the full senate were in no mood to give much leeway to an accidental president with little political standing.
But Ford was also mindful of a politics of a higher order; that of rebuilding public trust in government following the abuses of power by the Nixon administration. In the context of Watergate and beyond, Nixon’s efforts to bend key federal agencies to his personal interests and his cynical use of the judicial selection process for political and partisan gain had left the public repulsed by the very judicial and legal institutions that were responsible for carrying out the rule of law. Ford’s incoming attorney general Edward Levi captured the challenge when he described his primary task as attorney general as that of correcting “the continuing disaffection of the American public and disbelief in the system of justice.”
The Ruling
Ford’s political acumen was evident in his strategic choices. To avoid confrontation with the Senate, he invited the American Bar Association into the process to evaluate candidates even before he announced his choice, and he was rewarded with their enthusiastic endorsement of Stevens. In contrast to Nixon, Ford sought to dispel charges of cronyism or other impropriety by consciously detaching himself from the selection process. He delegated complete responsibility for the process to attorney general Levi, who had a pristine reputation for integrity, a first-class legal mind, and who was himself something of a political enigma, having previously worked in both Democratic and Republican administrations. Levi was well suited to carry out Ford’s directive to focus on competence, personal integrity, and judicial independence.
In the end, Stevens did not just survive a confirmation process pocked with potential land mines, but was unanimously confirmed in the Senate only three weeks after Ford announced his nomination. Judged by the criteria Ford set for himself as well as the political imperatives of the moment, the appointment of Justice Stevens should be regarded as one of the most impressive political achievements of his presidency.
Flash forward to the present, where every Supreme Court pick is almost sure to provoke united resistance from the opposition party and the Court’s standing in the eyes of the public has dropped to historic lows. It will be up to the historians to determine what part Ford’s appointment of Stevens, an eventual liberal mainstay on the Court, played in the very complicated half-century-long story that ended up with the thoroughly politicized Court of today. What Stevens himself foresaw in his dissenting Bush v. Gore opinion has indeed come to pass, with the seeming collapse of “the nation’s confidence in the judge as an impartial guardian of the rule of law.” While there is blame aplenty for the dissipating public trust in the Court, one thing seems certain; were more presidents to emulate Ford’s focus on judicial quality and character, informed by politics rightly understood, the Court would not find itself the political lightning rod that it is today.
Discussion Questions:
- Do you think Ford might have made a different selection if he had been elected to office?
- Should Presidents make more of an effort to nominate candidates who would be more acceptable to both parties?
- Should ideology be a factor in selecting judges, or should knowledge of the law be determinative? What is meant by “a judicial temperament”?