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A Political Career Used To Precede A Supreme Court Appointment. Not Anymore


President Trump's new nominee for the Supreme Court, Brett Kavanaugh, has never run for elected office. He has that in common with all the current members of the court, yet people often say today's court has become too political. Is there a contradiction there?


MONTAGNE: That's the kind of question we'd like to toss to NPR's senior editor and correspondent, Ron Elving, the man we call Professor Ron.

RON ELVING, BYLINE: Earlier in our history, seats on the Supreme Court were often seen as political appointments. And some justices were, frankly, political animals. One of Andrew Jackson's appointees was John McLean of Ohio, who served in Congress and in the cabinet and ran for president several times in several political parties, including the Democrats, Republicans, the Free Soil Party, the Anti-Masons and the Whigs. One man who did become president, William Howard Taft, later became the Supreme Court's chief justice a decade after losing the White House to Woodrow Wilson in 1912. Fifteen other members of the High Court have also been U.S. senators, and 17 served in the House of Representatives.


ELVING: In 1953...


UNIDENTIFIED PERSON #1: President Eisenhower appoints Governor Earl Warren of California as chief justice of the Supreme Court.

ELVING: ...Earl Warren, a politician who was governor of California and the Republican nominee for vice president in 1948. Warren was also a contender for the top of the ticket in 1952 when he was interviewed on the TV program...


UNIDENTIFIED PERSON #2: Time for the "Longines Chronoscope," a television journal of the important issues of the hour.

EARL WARREN: The Republicans cannot win just on a negative campaign. You see, we haven't been in power for 20 years. And the people of America are going to want to know what we propose to do. And I believe that we ought to meet every problem of American life head-on.

ELVING: Warren would serve as chief justice for 16 years. And the Warren court produced landmark decisions that desegregated public schools, established the principle of one-person, one-vote in electing legislators and protected the rights of the accused in the justice system. The court was often the center of controversy. And bumper stickers that read Impeach Earl Warren were a common sight in many parts of the country. In 1968, Warren announced his retirement. And Lyndon Johnson tried to elevate associate justice Abe Fortas to succeed him. Fortas had never run for elective office but had long been one of LBJ's closest political confidants, even while serving on the court.


STROM THURMOND: In the hearing this morning, I think it was clear...

ELVING: Here's South Carolina Senator Strom Thurmond objecting to Fortas' promotion to chief justice and justifying it by saying Fortas had been uncooperative in his confirmation hearing.


THURMOND: He wrote a book and gave his views. I would see no objection why he wouldn't give his views to the Senate Judiciary Committee and to the Senate of the United States.

ELVING: So with the presidential election looming, Senate conservatives in both parties mounted a successful filibuster against him.


UNIDENTIFIED PERSON #3: At the request of Justice Fortas on October 2, President Johnson withdrew the nomination.

ELVING: It fell to the next president, Richard Nixon, to fill the vacancy at the top of the court.


RICHARD NIXON: Ladies and gentlemen, I'm very proud tonight to nominate as the 15th Chief Justice of the United States Judge Warren Burger.

ELVING: A federal appeals judge known as a mainstream conservative who won swift Senate approval. But Democrats and some Republicans resisted Nixon's next two appointees, Clement Haynsworth and G. Harrold Carswell. As an appeals judge, Haynsworth was said to have been soft on segregation and hard on organized labor. Carswell was defeated after it was reported he had spoken out for segregation as a candidate for the Georgia legislature in 1948.

G. HARROLD CARSWELL: This has been an agonizing experience for me, my family and my friends.

ELVING: Since then, presidents have generally steered clear of prospective justices who have run for office. But that's not always enough to guarantee confirmation.


RONALD REAGAN: It's with great pleasure and deep respect for his extraordinary abilities that I today announce my intention to nominate United States Court of Appeals Judge Robert H. Bork.

ELVING: In 1987, Ronald Reagan nominated Robert Bork, a prominent legal scholar known for his blistering attacks on what he saw as activist liberals on the bench. His confirmation hearings were televised and highly contentious.


UNIDENTIFIED PERSON #4: Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters...

ELVING: And his nomination was rejected by the Senate.


UNIDENTIFIED PERSON #5: Roll call number 348 - the nomination of Robert H. Bork. The yeas are 42. The nays are 58. The nomination is not confirmed.

ELVING: Thereafter, the prospect of a confirmation battle has defined and limited the nomination process. The avoidance of controversy has, at times, seemed paramount. When President George H.W. Bush nominated David Souter of New Hampshire in 1990, the satirist Mark Russell described him in song.


MARK RUSSELL: (Singing) He's the man who has no footprints, no gaffes, no slip of the lip.

ELVING: The humorist may have overstated the case for effect. But his point is well-taken.


RUSSELL: (Singing) No hints that he really existed, no traces of where he has been. The Republicans swore, we've been burned before. And nobody will Bork us again.

ELVING: Qualifications for the job of the Supreme Court are simply not the only consideration. Getting past the politics of the Senate is the crucial hurdle. Seeking public office or just developing a strong political profile makes that hurdle all the harder to clear. Ron Elving, NPR News, Washington.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

Ron Elving is Senior Editor and Correspondent on the Washington Desk for NPR News, where he is frequently heard as a news analyst and writes regularly for NPR.org.
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