Who really "poisoned the well" by making appointments to the Supreme Court a partisan issue?
Republicans say it was Democrats when they blocked Robert Bork's nomination.
Rubbish. It goes back at least as far as Nixon nominating William Rhenquist to the court. Back in those days, Nixon and his Attorney General, John Mitchell (later convicted of conspiracy, obstruction of justice, and perjury for his role in the Watergate break-in and cover-up) wanted to do stuff they knew was illegal. They were particularly fond of wiretapping and preventive detention.
http://en.wikipedia.org/...
Often they just did it, but they were impressed that some bright young lawyer working somewhere in the administration could come up with excuses for what they wanted to do. It was often strained, contrived legal reasoning, but it was enough cover bending the law far beyond what Nixon and Mitchell would assume was the breaking point.
The bright young law-bender was William Rhenquist.
In 1971 Nixon put Rhenquist on the Supreme Court. Nixon was probably disappointed when Rhenquist wasn't loyal enough to his former boss to bend the law to stop the Watergate proceedings. (He may have looked for a way. By the time Clinton was impeached, Rhenquist was known as an expert on impeachment. Did he start studying the process when Nixon was in the dock?)
Stevens was the next Justice nominated, by Gerald Ford in 1975. I think Ford had already bitten off more controversy than he wanted by pardoning Nixon September 8, 1974. A year later, Ford may not have been looking for a nominee who wouldn’t create controversy, but he probably didn’t want to do anything that looked like an in-your-face insult or challenge to the Democrats. Stevens was confirmed 98-0.
Jimmy Carter didn’t get to appoint any Supreme Court justice.
Ronald Reagan appointed three. First was Sandra Day O’Connor, confirmed 99-0 in 1981. Reagan had pledged to appoint a woman during the campaign. (Back then nobody used the term ‘litmus test’ to make fun of apparently narrowing the field to female candidates. If Ronald Reagan wanted to do ‘affirmative action’ the conservatives didn't complain.)
In a double whammy in 1986, Reagan moved Rhenquist up from associate to Chief Justice, and appointed Antonin Scalia. There was considerable opposition to approving Rhenquist’s elevation – the vote was 65-33 – but after that fight the Democrats had little appetite for more, and Scalia sailed through, 98-0.
By 1988 Democrats seemed to have regained their appetite for a fight. They turned down Robert Bork, and Douglas Ginsburg withdrew his nomination in the face of opposition. Anthony Kennedy, with a record of recognizing a ‘right to privacy’ as in Griswold v Connecticut, sailed through on Reagan’s third try, 97-0. The Senate seemed to be applying recognition of that ‘right to privacy’ as a ‘litmus test’.
In 1990 George H.W. Bush nominated David Souter. He was called a ‘stealth nominee’ because he didn’t have much of a ‘paper trail’ of rulings on politically sensitive matters. He was confirmed by unanimous consent of the Senate. Conservatives were so disappointed in Souter’s record on the court I wonder if they think he passed their litmus test only because they had a bad batch of litmus paper.
The next year H. W. Bush made sure he had an arch conservative by nominating Clarence Thomas. He eventually squeaked through the confirmation vote, 52-48, a result that makes me think confirmation of lifetime appointments should require a two thirds majority of the Senate.
George W. Bush’s nominees seem, for practical purposes, as conservative as Thomas and Scalia, if not as arch.
So this morning, when I heard some Republican saying that Democrats had ‘poisoned the well’ by rejecting Robert Bork for partisan reasons, I almost yelled back at the TV. Bush v Gore has to be the most egregious example of mixing politics with the judiciary in our nation’s history.
In Bush v. Gore, 531 U.S. 98 (2000), Justice Stevens wrote a scathing dissent on the Court's ruling to stay the recount of votes in Florida during the 2000 presidential election. He believed that the holding displayed "an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed." He continued, "[t]he endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."
Late edit: I meant to add that whoever takes Stevens' seat needs to have what it takes to write opinions like that.
Wikipedia articles on the Supreme Court and on various justices were used as sources in this diary. Many of the facts come from there. Most or all of the guesses imputing motives are my own.