We Have Lost Something Sacred in Today’s Judicial Nomination Process

John Jay (1745-1829) was the first Chief Justice of the United States.

By Jim O’Neal

The Supreme Court was created in 1789 by Article III of the U.S. Constitution, which stipulates “the judicial power of the United States shall be vested in one Supreme Court.” Congress organized it with the Judiciary Act of 1789.

John Jay of New York, one of the Founding Fathers, was the first Chief Justice of the United States (1789–95). Earlier, he was president of the Continental Congress (1778-79) and worked to ratify the U.S. Constitution by writing five of the Federalist Papers. Alexander Hamilton and James Madison wrote the other 85-plus essays, which were published in two volumes called “The Federalist” (“The Federalist Papers” title emerged in the 20th century).

Nearly 175 years later, in 1962, President John F. Kennedy nominated Byron Raymond “Whizzer” White to replace Associate Justice Charles Whittaker, who became chief legal counsel to General Motors (presumably with a nice salary increase). Whittaker had been the first person to serve as judge at all three levels: Federal District Court, Federal Court of Appeals, and the U.S. Supreme Court (a distinction matched by Associate Justice Sonia Sotomayor).

White was the 1960 Colorado state chair for JFK’s 1960 presidential campaign and had met both the future president and his father Joe while attending Oxford University on a Rhodes Scholarship in London when Joe Kennedy was ambassador to the Court of St James. This was after White had graduated from Colorado University Phi Beta Kappa, where he was also a terrific athlete, playing basketball, baseball and finishing runner-up for the Heisman Trophy. He is unquestionably the finest athlete to serve on the Supreme Court.

He continued mixing scholarship and athletics at Yale Law School, where he graduated No. 1 in his class magna cum laude and played three years in the National Football League for the Pittsburg Pirates (now the Steelers). He was elected to the College Football Hall of Fame in 1954.

Judge White was in the minority on the now-famous Roe v. Wade landmark decision on Jan. 22, 1973. Coincidentally, there was a companion case that has been virtually forgotten called Doe v. Bolton (Mary Doe v. Arthur K. Bolton, Attorney General of Georgia, et al.) that was decided on exactly the same day and on the identical issue (overturning the abortion law of Georgia). White was in the minority here, too.

White’s nomination was confirmed by a simple voice vote (i.e. by acclamation). He was the first person from Colorado to serve on the Supreme Court and it appears that one of his law clerks … Judge Neil Gorsuch, also from Colorado … most likely will become the second, although it is unlikely he will receive many Democratic votes, much less a voice vote.

Times have certainly changed in judicial politics and, unfortunately, for the worse … sadly. Advise and Consent has morphed into a “just say no” attitude and we have lost something sacred in the process.

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chairman and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].

Some Supreme Court Confirmation Hearings Would Make Great Pay-Per-View TV

This oversized photograph of the U.S. Supreme Court, circa 1984, is signed by all nine justices, including Lewis F. Powell Jr. It realized $4,481.25 at an April 2011 Heritage auction.

By Jim O’Neal

When Justice Lewis F. Powell Jr. unexpectedly announced his retirement in June 1987, no commentator failed to emphasize the implications for the future of the Supreme Court. The New York Times stated the obvious: “Powell’s resignation gives President Reagan a historic opportunity to shape the future of the Court.” Justice Powell had played a pivotal role as the tie-breaking vote on controversial issues such as abortion, affirmative action and separation of church and state.

Yet Powell was not merely a simple tie-breaker. Since he frequently swayed the court’s decision from one ideological camp to another by virtue of his swing vote, he was viewed as mainstream. As a result, President Reagan attempted to portray Powell’s replacement, Robert Bork, as neither conservative nor liberal, stressing his “evenhanded and open-minded approach to the law.”

The president’s lack of success was immediately evident when Senator Edward Kennedy – only 45 minutes after Bork’s appointment – fired the opening salvo against Bork’s record on abortion, civil rights and criminal justice. Kennedy declared, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would be forced to sit at segregated lunch counters, rogue policemen could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, and artists could be censured at the whim of government.”

Once Kennedy unleashed these polemics, there was no turning back. Southern Senators were intimidated by the possible loss of black voters and liberals in the Senate were eager for a good fight after eight years of frustrating losses to conservatives.

Despite being confirmed unanimously for the U.S. Court of Appeals, Judge Bork was stepping into a veritable political hornets’ nest and he was the wrong person in the wrong spot at the wrong time! His copious scholarly writings – an asset in academia – and his lucidly crafted, elegantly penned opinions on the appellate bench were red meat in the hands of hostile interest groups.

Bork with President Ronald Reagan in 1987.

Moreover, Bork’s personal appearance and demeanor seemed as suspect as his ideology. His devilish beard and turgid academic discourses did not endure him to the public or wavering Senators. His detailed, scholarly, lecture-like answers to every single question would be considered naive today … where nominees are well versed in the art of non-answers to tough questions, and grilled by “murder boards” designed to prepare careful answers to virtually everything the nominee has written or spoken since puberty. Today’s Google/Facebook generation of staffers can unearth obscure facts that might be even slightly contentious.

Judge Bork’s nomination was rejected by a resounding 42-58 vote. After being transfixed by the riveting testimony, I personally believe that even if Judge Bork were given another try today (he died in 2012), the outcome would be similar. He had such a high regard of his superior legal acumen and was so openly dismissive of the twits on the Senate Judiciary, it would be another verbal combat that would end just as badly.

It would be a perfect scenario for a pay-for-view cable TV spectacle, especially for Supreme Court nerds like moi.

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chairman and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].

Supreme Court Appointments Are Always Soap Operas, with Gavel-to-Gavel Coverage

This Rehnquist Supreme Court photograph, circa 1989, is signed by all nine justices, including Antonin Scalia and William H. Rehnquist. It realized $1,171.25 at an April 2015 auction.

By Jim O’Neal

On June 17, 1986 – to the surprise of his colleagues, the public and President Reagan – Chief Justice of the U.S. Supreme Court Warren Burger submitted his resignation. After 17 years as head of the U.S. federal court system and within months of his 79th birthday, Burger wanted to devote all of his time to organizing ceremonies for the bicentennial of the U.S. Constitution in 1987.

Almost immediately, President Reagan announced his choice for Burger’s replacement: sitting Associate Justice William H. Rehnquist. Judge Antonin Scalia of the U.S. Court of Appeals for Washington, D.C., was selected to fill the vacant position. The Burger court had been surprisingly active in civil rights and President Reagan resolved to fill the vacancies with conservative, strict constitutionalists.

Rehnquist certainly met these criteria, as his 14-plus years on the bench validated. He made that abundantly clear during his confirmation hearings that opened July 30, 1986, by telling the Judiciary Committee they should not expect any change in his jurisprudence. His years on the court were on the record.

His primary opponent, Senator Edward Kennedy, acknowledged this, but also assailed the chief justice nominee in harsh terms, thundering, “By his own record, he is too extreme on race, on women’s rights, separation of church and state, and too extreme to be chief justice.” Kennedy’s assertions set the tone for two weeks of stormy testimony. No one dared to dispute Rehnquist’s powerful intellect or keen understanding of the law. He was just “out of the mainstream” – a standard ploy for any opposition.

After three months of divisive, acrimonious debate in the full Senate, he was confirmed 65-33. The 33 nays were the most votes ever cast against a nominee who won confirmation. Charles Evans Hughes prevailed in 1930 after a vote of 52-26, the previous record.

Scalia had a much easier time, perhaps because the partisan vitriol was exhausted on Rehnquist. The New Republic had earlier written, “A Scalia nomination makes political sense.” And a White House official had exclaimed, “What a political symbol! Nino would be the first Italian-Catholic on the court. He has nine children and everyone likes him. He’s a brilliant conservative. What more do you want?” Moreover, the 50-year-old Scalia was 10 years younger than the other possible candidate, Judge Robert Bork.

Even ideological foes were hard-pressed to challenge Scalia’s meritorious credentials. A product of New York public schools, he tied for first at Xavier High School, graduated at Georgetown University as valedictorian summa cum laude, and at Harvard Law was editor of the law review and a postgraduate fellow. This was followed by the law faculty at University of Virginia and appointments at Georgetown Law, the American Enterprise Institute, Stanford Law, and the University of Chicago Law School.

He sailed through the Judiciary Committee 18-0 and the full Senate 98-0. He served on the Supreme Court until his death last year. Strict constitutional conservatives are still in mourning over his loss.

The upcoming hearing on March 20 is designed to select his replacement. We will all have a ringside seat at what promises to be another Supreme Court soap opera, with gavel-to-gavel TV coverage ad nauseam.

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chairman and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].

Reagan Made History with Appointment of O’Connor to Supreme Court

An Annie Leibovitz photograph of Ruth Bader Ginsburg (left) and Sandra Day O’Connor, dated 1997 and signed by the photographer, realized $1,750 at a February 2017 auction.

By Jim O’Neal

Ronald Wilson Reagan won two presidential elections, both by overwhelming margins. In 1980, he took 44 states with an electoral vote total of 489. Four years later, he crushed Walter Mondale, winning 49 states and 525 electoral votes (the all-time record).

The Reagan agenda included an attempt to alter the contemporary jurisprudential approach to the federal judiciary; he quickly made it known he would return to traditional criteria in selecting jurists. As a candidate, he made it crystal clear he was opposed to any type of racial or other quotas.

During the 1980 presidential campaign, candidate Reagan had promised “one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can find, one who meets the high standards I will demand for all my appointments.” The opportunity to fulfill this pledge came within the first six months of his presidency.

On June 18, 1981, in what appeared to be a major surprise, Associate Justice Potter Stewart publicly announced his retirement from the Supreme Court, effective at the close of the 1980-81 term in July. However, members of the administration had actually known three months earlier and had informed the president (while he was still recovering from the assassination attempt). This gave the administration three months to search quietly for a nominee without outside pressure and feverish media speculation.

On June 25, Attorney General William French Smith gave the president a list of 25 names – approximately half of them women – clearly a new record in this regard. Among the women were Arizona Court of Appeals Judge Sandra Day O’Connor; Chief Justice of the Michigan Supreme Court Mary Coleman; and Judge Amalya L. Kearse of the U.S. Court of Appeals for the Second Circuit, a youthful black Carter appointee. On July 1, O’Connor and two other candidates met with the president and she quickly reminded him they had met 10 years before when he was governor of California and she was a member of the Arizona State Senate.

In addition to the successful interview, there was the Stanford connection: U.S. Supreme Court Justice William Rehnquist graduated from Stanford Law School in the same class as O’Connor. When Senator Barry Goldwater urged her selection, that was enough to clinch it.

The only strong dissent came from the New Right, including the Reverend Jerry Falwell of the Moral Majority, who encouraged all “good Christians” to express concern. Goldwater’s characteristically frank retort was “Every good Christian ought to kick Falwell right in the ass!”

On Sept. 15, 1981, the Senate Judicatory Committee approved Judge O’Connor 17-0 and six days later, the full Senate voted 99-0 to confirm (Senator Max Baucus of Montana – a strong supporter – was out of town for the vote).

So history had been made!

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chairman and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].

Appointments to Supreme Court Have a Long History of High Drama

Chief Justice Earl Warren swears in John F. Kennedy on the cover of the Jan. 27, 1961, edition of Time magazine. This copy, signed by Kennedy, sold for $1,135.25 at a December 2012 auction.

By Jim O’Neal

On June 25, 1968, President Lyndon B. Johnson announced Chief Justice Earl Warren’s intention to retire and the nomination of Associate Justice Abe Fortas to replace him. However, after three months of acrimonious, partisan debate, the Senate refused to vote on the Fortas nomination. When Fortas asked the president to withdraw his nomination, Chief Justice Warren withdrew his resignation. “Since they wouldn’t confirm Abe, then they will be stuck with me!”

And, true to his word, Chief Justice Warren did not retire until June 1969, when President Richard Nixon replaced him with U.S. Court of Appeals Judge Warren Earl Burger.

In a bizarre twist, Justice Fortas had come under intense scrutiny and it was revealed that he had a questionable relationship with Louis Wolfson, the first modern corporate raider, according to Time magazine. This led to the resignation of Fortas – the first Supreme Court Justice to do so under these ethical circumstances.

Nixon was ecstatic that he would get to make a second nomination and he carefully chose judge Clement Haynsworth from the U.S. Court of Appeals-Fourth Circuit as part of a “Southern Strategy.” Congress seemed supportive, but to the president’s anger, frustration and embarrassment, the Judicial Committee found clear evidence of financial improprieties. Like Fortas, nothing illegal, but he went down 55-45 in a display of principled equality.

The president quickly countered with Judge Harrold Carswell, an undistinguished ex-District Judge with only six months of experience on the U.S. Court of Appeals. It was clearly an act of vengeance, intended to teach the Senate a lesson and downgrade the Court. Then, suspicious reporters dug up a statement to the American Legion in 1948: “I yield to no man in the firm, vigorous belief in the principles of white supremacy.”

Oops, there went the Southern Strategy, and the Senate voted him down.

It was another bitter defeat for the president, so Nixon turned North and picked Harry Blackmun of Minnesota and an old friend of Chief Justice Burger. He sailed through 94-0 and there would be no further vacancies for 15 months, when Nixon found himself in yet another imbroglio.

In September 1971, terminal illness compelled the retirement of Justices Hugo Black and John Marshall Harlan II, the two most influential figures and veritable giants of the law. Rather than a diligent search, Nixon tried the trial-balloon strategy and floated the name of U.S. Representative Richard Poff of Virginia, but his civil rights skeletons were easy to uncover and he withdrew. Then Nixon sent six nominees to the American Bar Association for review, but they quickly criticized them as manifesting “a relentless pursuit of mediocrity” and urged the president to “add some people of stature.”

In a dramatic television broadcast, Nixon revealed his “formal nominees” … Lewis F. Powell Jr. and a youthful (47) William Rehnquist (approved after three months of wrangling), who would serve on the court for 33 years – 19 as Chief Justice.

Whew! Next stop: March 20, 2017. Good luck, Judge Neil Gorsuch. This is a tough crowd.

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chairman and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].