The behind-the-scenes politics of picking a Supreme Court justice
As U.S. Supreme Court Justice Antonin Scalia was being eulogized and President Barack Obama had begun reviewing files on his potential successor, a chance meeting led me to recall a memo Patrick Buchanan, an advisor to President Ronald Reagan, wrote 30 years ago recommending Scalia.
“The stakes here are immense – whether or not this President can leave behind a Supreme Court that will carry forward the ideas of the Reagan Revolution – into the 21st Century,” ardent conservative Buchanan had written as Republican Reagan began his second term in 1985 and anticipated a court vacancy.
Weighing the possible nominations of Scalia and Robert Bork, both U.S. appellate judges at the time, Buchanan wrote, “While Bork is (an) ex-Marine and a brilliant judge, I would lean to Scalia for the first seat (of Reagan’s second term). He is an Italian-American, a Roman Catholic, who would be the first Italian ever nominated – a tremendous achievement for what is America’s largest ethnic minority, not yet fully assimilated into the melting pot – a minority which provides the GOP its crucial margins of victory in New Jersey, Connecticut and New York.”
The memo, which I found in Reagan archives when I was writing a Scalia biography, demonstrates that a president’s choice is shaped by politics and the jockeying of key players. Subsequent research on other justices has reinforced the view that advocates who reach the president early and often make a difference.
When Democrat Obama became president in 2009, his staff had prepared a binder similar to the one he carried at the White House on Friday. Then-Justice David Souter had made his unhappiness with Washington life clear, and administration staff wanted to be prepared should he or another justice step down.
At the same time, Hispanic advocates and judicial colleagues of then-U.S. appellate Judge Sonia Sotomayor began reaching out to White House counsel Gregory Craig to endorse her and head off any criticism from advocates backing other possible nominees.
In early 1981, then-White House counsel Fred Fielding heard from various patrons, too, including Chief Justice Warren Burger, who wanted to ensure that a little known Arizona state court judge named Sandra Day O’Connor would be in the running for any court opening. Burger had met O’Connor on a vacation with mutual friends and believed she was ideal to fulfill Reagan’s 1980 campaign promise to put the first woman on the Supreme Court. O’Connor was appointed later that summer and made history.
Now Obama is weighing a nomination that could end the decades-long conservative dominance on America’s high court and effects of the Reagan revolution that Buchanan invoked. Despite the unexpectedness of Scalia’s death on Feb. 13, White House lawyers almost certainly had sketched out scenarios for potential nominees. Paper trails, ethnic characteristics and political risks would have been explored. Scalia, after all, was one of four justices over age 70; Ruth Bader Ginsburg, 82, is the eldest.
On Saturday, hours before (and a several miles from) Scalia’s funeral at the Basilica of the National Shrine of the Immaculate Conception, I ran into Buchanan in Washington. Rarely have we crossed paths.
I told him that his 1985 memo immediately sprung to mind. He said he remembered writing it, observing that he and Scalia were Catholics who had attended Jesuit high schools and then Georgetown University. Buchanan thought the prospect of Scalia as the first Italian American justice would smooth his Senate confirmation.
When Reagan had the opportunity to name Scalia in 1986, he was unanimously approved.
In 1987, Reagan nominated Robert Bork for a new vacancy. But unlike when Scalia was considered, Democrats had a new Senate majority and controlled the committee hearings and floor vote. Bork, a leading conservative, was defeated 58-42 in one of the most contentious court fights of the last century.
Now that and other partisan battles lie in the backdrop as Obama makes his choice and tests how far his judicial vision, not Reagan’s, will extend into this century.