Indeed, I believe there’s no better predictor of whether a Supreme Court justice will remain strong and faithful to the Constitution than whether he or she has a long record of being excoriated by the press, mocked by the legal academy, and ridiculed by polite society, and holding his or her ground nonetheless. Only by looking for stoic and adamant resistance to the “Greenhouse effect” can we reliably deduce that a prospective nominee has the mettle and the fortitude to stick to his or her convictions when confronted by Washington, D.C.’s proverbial storm of locusts.
We should also expect nominees to have real, demonstrated track records across the spectrum of constitutionalism. We don’t need jurists who are only sound on structural issues, or who are only sound on certain key Bill of Rights provisions, or who are “good” on criminal-justice issues while failing to uphold the Constitution in other domains. Rather, we need judges and justices who are committed to the full panoply of constitutional issues—and who have demonstrated their commitment and bled for those ideals over the course of their careers.
Incidentally, the flip side of these criteria is true, as well. Those justices who have been faithless, who have been willing to join the activists in imposing liberal policies regardless of what the Constitution might provide, often fall in a similar pattern: Typically, they have little to no record, they have assiduously avoided controversy, they have refrained from taking difficult stands, and they have avoided subjecting themselves to the harsh light of criticism. They have been timid where they could have been bold or assertive.
For seven decades, Republicans have gotten this wrong, starting in the 1950s. Two of the most liberal justices of the twentieth century were picked by the Republican President Dwight Eisenhower: Earl Warren and William Brennan. It was a time when the Supreme Court was not believed to be all that important. It was still, to borrow the Framers’ term, the “least dangerous” branch, and so nominations to the high court were seen as appropriate to use as political bargaining chips or for currying favor with needed electorates.
Warren had been the Republican governor of California and a formidable candidate for president. Going into the 1952 Republican convention in Chicago, Democrats had held the White House for two decades, since FDR’s election in 1932. As it so happens, two chief justices would arise from that convention.
Ideological divides in the party were present then, as now. Most of the Northeastern moderate Republicans supported General Eisenhower; most of the conservative Republicans supported Ohio Senator Robert Taft. On the first ballot, Eisenhower received 595 votes, 9 short of the 604 required for the nomination. Taft received 500 votes. Warren was in third, with 81 votes. Rounding out the field were former Minnesota governor Harold Stassen with 20 votes, and General Douglas MacArthur with 10.
Richard Nixon, then a forty-three-year-old fiery, anti-communist senator, was supporting his fellow Californian Earl Warren. Eisenhower ultimately would offer Nixon the vice presidency (which of course he accepted). Warren’s delegates initially refused to support Eisenhower, hoping that in deadlock the convention would settle on their candidate as a compromise. So all twenty of Stassen’s delegates switched to Eisenhower, giving him the majority needed to win. Warren Burger was the leader of Strassen’s convention supporters, delivering the critical votes, which set the stage for future President Nixon to later name him our fifteenth chief justice.
Earl Warren was more cagey in giving his own support. He demanded in exchange—and Eisenhower gave—a promise that he would be nominated for the next Supreme Court vacancy that occurred. What nobody knew was that, on September 8, 1953—just nine months into Eisenhower’s first term—Chief Justice Fred Vinson would die suddenly. Eisenhower sent his attorney general to California to meet with Warren, who had just returned from a hunting trip. He asked Warren whether he understood the promise to include the chief justiceship, rather than merely an associate justice position. “The first vacancy,” Warren replied.
And so the Warren Court was born.
Eisenhower’s second nomination to the Court was William Brennan, a New Jersey Supreme Court justice and a Democrat. Appointing him was seen as helpful to shoring up Eisenhower’s support with Catholics and Irish Americans.
Warren, of course, went on to preside over one of the most activist courts in history, and William Brennan single-handedly led the left on the Court for almost thirty-four years. A small man with a sparkling wit and an easy smile, Brennan excelled at persuading his fellow justices to join him in reshaping America. He was well known for describing the most important legal principle at the Supreme Court as what he would call, with a grin while holding up five fingers, the “Rule of Five.” As he would say, “with five votes, you can accomplish anything”—no matter what the law or Constitution said otherwise.
Eisenhower’s biographers reported that, in 1958, Eisenhower observed that he had made two mistakes as president, “and they are both sitting on the Supreme Court.” Alas, Warren and Brennan were hardly the only Republican mistakes.
When he became president, Richard Nixon did slightly better: overall, he got 25 percent of his nominations (who were confirmed) right. Nixon started his presidency with the historic opportunity to replace Chief Justice Warren, who had announced his retirement the year earlier. He first offered the chief justiceship to former New York governor Thomas Dewey, who turned it down. Dewey was an upper-crust aristocrat with a thin pencil mustache; Alice Roosevelt Longworth (Teddy’s eldest daughter) famously, and witheringly, described him as “the little man on the wedding cake.” He was the leading voice of the “moderate” Republicans—he described his own governing philosophy as “pay-as-you-go liberalism”—and, remarkably, he had turned down the very same offer of becoming chief justice previously from Eisenhower. Dewey, like Warren and Burger, had played a pivotal role at the 1952 convention, helping both Ike and Nixon secure their respective nominations; four years before that, in 1948, Dewey had been the (losing) Republican presidential nominee against Harry S Truman.
