The recent debate on whether or not to seat Judge Brett Kavanaugh on the Supreme Court was gripping, to say the least. One person complained to me that never had a nomination to the court created such controversy.
Really? Most adult Americans remember when President George H. W. Bush nominated Judge Clarence Thomas. The nomination was controversial because of the judge’s supposed legal philosophy. Then came the charges of a former colleague in which, it was alleged, Judge Thomas had engaged in inappropriate, off-color speech.
As was the case recently, hearings of the Senate’s Judiciary Committee — which reviews all nominations to the federal judgeship — were televised nationally, and millions of Americans watched. In the end, the committee deadlocked, without recommending or not recommending that Judge Thomas be allowed to serve on the Supreme Court. In the Senate itself, he was approved 52-48.
Also contentious were the debates to consider Judge Neil Gorsuch in 2017, Judge Merrick Garland in 2016, Elena Kagan in 2010, Judge Sonia Sotomayor in 2009, Judge Samuel Alito in 2006, Judge John G. Roberts, Jr., in 2005, and the granddaddy of them all, speaking of the past 50 years, the arguments surrounding the nomination of Judge Robert Bork in 1987.
Several nominees have voluntarily stepped aside. Others were voted down, dropped or even refused consideration by the Senate. Indeed, in the last half-century, living memory, presidents have presented 25 nominees for the Supreme Court. Ten of them failed for one reason or another.
An outrageously ugly nomination battle, certainly in the sense of religious bigotry, occurred in 1916 when President Woodrow Wilson proposed Louis D. Brandeis, a lawyer in Louisville, Kentucky. Brandeis was Jewish, the first Jewish-American proposed for the court.
Critics ranted and raved that if Brandeis were on the court, it would be the end of the American system of justice, since he would not apply “Christian” values to cases. The Judiciary Committee went back and forth for five long months. Former President William Howard Taft called the Brandeis nomination “an evil and a disgrace.” Finally, the Senate confirmed Brandeis.
He served until he retired in 1939. Since Brandeis, seven Jewish-Americans have been Supreme Court justices. The American system of justice has remained intact.
President Andrew Jackson in 1836 proposed Roger Brooke Taney, a Catholic from Maryland. Immediately, critics screamed that if Taney were confirmed, the pope would be deciding Supreme Court cases. It was bitter. The Senate rejected Taney.
Determined, with not one anti-Catholic bone in his body, Jackson revived Taney’s nomination when the next vacancy came. John C. Calhoun, Henry Clay and Daniel Webster fumed, but Taney was confirmed.
Eleven Catholics have followed Taney on the court. The republic has survived.
History shows that a nominee’s earlier judicial reputation never indicates how he or she will rule on cases.
President Franklin D. Roosevelt proposed U.S. Senator Hugo L. Black of Alabama, a former member of the Ku Klux Klan. He was regarded as a racist. On the court, he supported every ruling giving full rights to African-Americans.
In 1988, President Ronald Reagan nominated Judge Anthony Kennedy, a conservative, an active Catholic and presumed to be a Republican. Pro-life advocates were delighted. Once on the bench, Kennedy cast the deciding votes to keep abortion legal and to allow same-sex marriage.
Msgr. Owen Campion is OSV’s chaplain.