John Whitehead's Commentary
Eliminating Some Great Supreme Court Justices
The fact that Harriet Miers was forced to withdraw her name for a Supreme Court seat raises real concerns about the nomination process. Before the American people could even hear what she had to say in her testimony before Congress, she was completely demonized by right-wing interest groups. And of course the media, with a giddy zeal, attempted to find out every personal tidbit about this lady in exposing any weaknesses. Now, the exacting and wearisome nomination process begins again, this time with Samuel Alito. Because of Alito's conservative record, some in Congress are threatening a fight over the Alito nomination.
However, with all the scrutiny and attention paid to possible Supreme Court justices in today's media, some of the greatest judges to ever sit on the Supreme Court would never have made it to the bench.
For example, Justice Hugo Black was a staunch advocate for the Bill of Rights. During the anti-communist McCarthy era of the 1950s, Black consistently voted to uphold the First Amendment rights of those brought under the heavy hand of the government. He also wrote the unanimous opinion in the 1963 case of Gideon v. Wainwright, which guaranteed the right of all defendants to be represented by a lawyer in state criminal trials. Black was famous for pulling a pocket Constitution from inside his coat jacket and liberally quoting from it.
However, in the 1920s, Black was a member of the Ku Klux Klan. In 1921, he defended Klansmen accused of murdering a priest. Although he later disavowed his membership in the Klan, in today's over-scrutinized attention paid to the background of potential nominees, Black would have been slaughtered like a sacrificial lamb on the altar of politics.
When Earl Warren was a district attorney, he was noted for being "tough on crime." And later as the Republican governor of California, Warren exuded a conservative bias. But President Eisenhower was surprised that Warren turned out to be more liberal than he appeared. In fact, Eisenhower once remarked that nominating Warren to the Supreme Court "was the biggest damned fool mistake I ever made in my life." Indeed, it was Chief Justice Warren who wrote the opinion in the landmark decision of Brown v. Board of Education in 1954, which did away with the segregation of public schools. He also wrote the opinion in Miranda v. Arizona, which required that the rights of people arrested be explained to them, including the right to an attorney (often called the "Miranda Warnings"). Warren later headed up the Warren Commission to investigate the circumstances of John Kennedy's assassination. But when he was governor of California, he supported the internment of Japanese-Americans in concentration camps during World War II. Because of this, it is quite unlikely that he would ever have made it to the Supreme Court.
One of the complaints lodged against Harriet Miers was that she was never a judge. However, Robert Jackson, considered one of the great Supreme Court justices of all time, did not even attend college and was never a judge. At age 18, he went to work as an apprentice in a law firm. From there, he worked his way all the way to being the U.S. Solicitor General and finally to the Supreme Court, where he authored some landmark Supreme Court cases upholding free speech and freedom of religion. Jackson later served as the U.S. chief prosecutor at the Nuremberg trials.
Finally, William Rehnquist, whose vacancy was recently filled by John Roberts, had what some have argued was a lurid past. While a student at Stanford University, Jewish classmates were allegedly outraged by Rehnquist goose-stepping and "Heil Hitlering" with friends in front of a dormitory for Jewish students. He was an attorney in private practice in Phoenix, Arizona, in the mid-'50s to the late '60s. In 1964, Rehnquist voiced opposition to the Phoenix City Council's proposed Public Accommodation Ordinance, which permitted blacks to enter stores and restaurants. In fact, according to George Brooks, president of the Phoenix NAACP chapter from 1963 to1972, one evening when he and other civil-rights activists were picketing in front of the Arizona State House, Rehnquist emerged from the building, where he had been representing Republicans in an unrelated hearing. "He came to accost us," Brooks says. Without any prompting, Rehnquist approached Brooks in the picket line and angrily expressed his opposition to the proposed law. "He remonstrated against us," Brooks says. Others have testified to the altercation, which Rehnquist says didn't happen--even claiming under oath, to Brooks' amusement, that he did not know anyone by the name of George Brooks. Several witnesses even stated under oath that Rehnquist harassed minority voters in the early 1960s--primarily black and Hispanic. Rehnquist also owned property containing restrictive covenants barring its sale to non-whites and Jews. These facts alone today would destroy any chance of Rehnquist ever sitting on the Supreme Court. But he went on to serve on the Court 33 years and was one of the longest-sitting Chief Justices ever--19 years. And while his opinions were not memorable, they did nothing to dismantle the staid Supreme Court.
Clearly, the current nomination process forces presidents to pick nominees with no past. These are people who hide what they believe and hold a politically correct view of almost everything. They are stealth candidates like John Roberts who, in his testimony before Congress, revealed virtually nothing. In the process, the sort of diversity needed on the Supreme Court will never exist again under the current procedure.
On one side, the interest groups scream and spend millions of dollars to either bolster or destroy the candidate. Consider the case of Judge Robert Bork, nominated to the Court by Ronald Reagan. Interest groups spent an unprecedented $20 million in campaigns to either demonize or praise him. Bork was so scrutinized that he was criticized for his movie rentals--such as A Day at the Races, Ruthless People and, amazingly, Alfred Hitchcock's The Man Who Knew Too Much.
On the other side is the celebrity-driven media fed by leaks from government agents that attempt to expose every weakness of the individual. And who gets left out of the process? As usual, the American people.
However, with all the scrutiny and attention paid to possible Supreme Court justices in today's media, some of the greatest judges to ever sit on the Supreme Court would never have made it to the bench.
For example, Justice Hugo Black was a staunch advocate for the Bill of Rights. During the anti-communist McCarthy era of the 1950s, Black consistently voted to uphold the First Amendment rights of those brought under the heavy hand of the government. He also wrote the unanimous opinion in the 1963 case of Gideon v. Wainwright, which guaranteed the right of all defendants to be represented by a lawyer in state criminal trials. Black was famous for pulling a pocket Constitution from inside his coat jacket and liberally quoting from it.
However, in the 1920s, Black was a member of the Ku Klux Klan. In 1921, he defended Klansmen accused of murdering a priest. Although he later disavowed his membership in the Klan, in today's over-scrutinized attention paid to the background of potential nominees, Black would have been slaughtered like a sacrificial lamb on the altar of politics.
When Earl Warren was a district attorney, he was noted for being "tough on crime." And later as the Republican governor of California, Warren exuded a conservative bias. But President Eisenhower was surprised that Warren turned out to be more liberal than he appeared. In fact, Eisenhower once remarked that nominating Warren to the Supreme Court "was the biggest damned fool mistake I ever made in my life." Indeed, it was Chief Justice Warren who wrote the opinion in the landmark decision of Brown v. Board of Education in 1954, which did away with the segregation of public schools. He also wrote the opinion in Miranda v. Arizona, which required that the rights of people arrested be explained to them, including the right to an attorney (often called the "Miranda Warnings"). Warren later headed up the Warren Commission to investigate the circumstances of John Kennedy's assassination. But when he was governor of California, he supported the internment of Japanese-Americans in concentration camps during World War II. Because of this, it is quite unlikely that he would ever have made it to the Supreme Court.
One of the complaints lodged against Harriet Miers was that she was never a judge. However, Robert Jackson, considered one of the great Supreme Court justices of all time, did not even attend college and was never a judge. At age 18, he went to work as an apprentice in a law firm. From there, he worked his way all the way to being the U.S. Solicitor General and finally to the Supreme Court, where he authored some landmark Supreme Court cases upholding free speech and freedom of religion. Jackson later served as the U.S. chief prosecutor at the Nuremberg trials.
Finally, William Rehnquist, whose vacancy was recently filled by John Roberts, had what some have argued was a lurid past. While a student at Stanford University, Jewish classmates were allegedly outraged by Rehnquist goose-stepping and "Heil Hitlering" with friends in front of a dormitory for Jewish students. He was an attorney in private practice in Phoenix, Arizona, in the mid-'50s to the late '60s. In 1964, Rehnquist voiced opposition to the Phoenix City Council's proposed Public Accommodation Ordinance, which permitted blacks to enter stores and restaurants. In fact, according to George Brooks, president of the Phoenix NAACP chapter from 1963 to1972, one evening when he and other civil-rights activists were picketing in front of the Arizona State House, Rehnquist emerged from the building, where he had been representing Republicans in an unrelated hearing. "He came to accost us," Brooks says. Without any prompting, Rehnquist approached Brooks in the picket line and angrily expressed his opposition to the proposed law. "He remonstrated against us," Brooks says. Others have testified to the altercation, which Rehnquist says didn't happen--even claiming under oath, to Brooks' amusement, that he did not know anyone by the name of George Brooks. Several witnesses even stated under oath that Rehnquist harassed minority voters in the early 1960s--primarily black and Hispanic. Rehnquist also owned property containing restrictive covenants barring its sale to non-whites and Jews. These facts alone today would destroy any chance of Rehnquist ever sitting on the Supreme Court. But he went on to serve on the Court 33 years and was one of the longest-sitting Chief Justices ever--19 years. And while his opinions were not memorable, they did nothing to dismantle the staid Supreme Court.
Clearly, the current nomination process forces presidents to pick nominees with no past. These are people who hide what they believe and hold a politically correct view of almost everything. They are stealth candidates like John Roberts who, in his testimony before Congress, revealed virtually nothing. In the process, the sort of diversity needed on the Supreme Court will never exist again under the current procedure.
On one side, the interest groups scream and spend millions of dollars to either bolster or destroy the candidate. Consider the case of Judge Robert Bork, nominated to the Court by Ronald Reagan. Interest groups spent an unprecedented $20 million in campaigns to either demonize or praise him. Bork was so scrutinized that he was criticized for his movie rentals--such as A Day at the Races, Ruthless People and, amazingly, Alfred Hitchcock's The Man Who Knew Too Much.
On the other side is the celebrity-driven media fed by leaks from government agents that attempt to expose every weakness of the individual. And who gets left out of the process? As usual, the American people.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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