U.S. Supreme Court musings
Imagine we are a few years down the road and Brett Kavanaugh is sitting on the Supreme Court.
The court, after hearing a case touching on a woman’s right to an abortion, overturns Roe vs. Wade, the bedrock abortion decision decided by the high court in the early 1970s.
With Kavanaugh as the court’s “swing” vote, consider the outcry across the country. I can only guess that a reversal of that case would make the anti-war protests of the 1960s look calm by comparison. The demonstrations in and around Capitol Hill and across the country by women (and their male allies) incensed by the decision would make Donald Trump’s raucous political rallies seem tame.
By condemning women to a return to back alley abortions, a closely decided 5-4 decision would tear the country apart. The fact that Kavanaugh would have cast the decisive vote in telling women they were no longer in charge of their own bodies could only make matters worse — far worse.
Kavanaugh’s elevation to the court runs a big risk. The mere specter of widespread public disenchantment should alone be enough to warrant Kavanaugh never getting the chance to claim a Supreme Court seat.
The moral underpinnings of the court and its capacity to command public esteem are at issue in his nomination.
The court, without inherent powers like the other two branches of government to sustain itself, is reliant on its moral suasion and reputation for steadfast political neutrality. Remove these and you’re left with nine pitiful human beings dressed in silly black robes.
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On Feb. 9, 1916, three Democratic senators and two Republicans heard the first of 40 witnesses who were called to offer testimony in the Supreme Court nomination of Louis Brandeis, a selection of President Woodrow Wilson.
It was the opening day of a four-month-long ordeal for the Democratic administration and for Brandeis, a highly influential presidential advisor who would become the first Jewish member of the Supreme Court.
The testimony on Capitol Hill on that long ago February morning represented the first time in history a president’s nominee for the court was the subject of a Senate hearing.
Interest was high. A standing-room-only crowd squeezed into the subcommittee room.
When it came to a vote in the full Senate, the parties split on partisan lines: a single Democrat cast a vote against Brandeis while three Republicans crossed the aisle vote to vote for him.
Brandeis served on the court with distinction and honor, just as Wilson thought he would. He stepped down from the bench in 1939, nearly a quarter of a century after his rugged fight for confirmation.
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On May 17, 1954, the nine black-robed justices of the Supreme Court revealed their decision in the case of Brown vs. Topeka Board of Education, the public school integration case that fundamentally shifted the relationship between white and black Americans.
The man who read the Brown opinion was Chief Justice Earl Warren, the first of five justices appointed by President Eisenhower during his eight years in office.
The criteria Ike used to select Warren, a former Republican governor of California, should serve as a model. With eight justices appointed by Democratic presidents on the court, Ike said he did not “want the court to be a ‘repository of unbalanced partisan attitudes.'”
President Eisenhower wanted a chief justice who was healthy and who enjoyed the support of his peers. He wanted someone who possessed “common sense.”
He wanted someone, he said, who would become “the pride of the population,” someone who would command “respect” and the “confidence of the public.”
Ike directed his attorney general to conduct a thorough FBI background check of Warren. The president wanted to hear from the FBI about Warren’s “reputation” and “every pertinent detail of his life.”
When some Old Guard Republicans in the Senate threw roadblocks in the path of Warren’s nomination, Ike vowed privately to “leave the Republican Party and try to organize an intelligent group of independents, however small.”
Eight months after Warren’s appointment to the court, he led a previously divided court to a unanimous decision in the Brown case.
The Warren court was off and running, and while the chief justice was soon being pilloried by the right, he fulfilled Ike’s goal of placing on the court “a man of broad experience, professional competence and with an unimpeachable record and reputation for integrity.”
Richard Robbins lives in Uniontown and is the author of two books — Grand Salute: Stories of the World War II Generation and Our People. He can be reached at dick.l.robbins@gmail.com.