Much has been said and has yet to be said, about the nomination of Judge Ketanji Brown-Jackson as the first Black woman for the U.S. Supreme Court. Her case brings back thoughts of past presidents and their picks for the high court.
Since 1869, the 25 presidents made 75 nominees to the court, an average of three per chief executive. Franklin D. Roosevelt nominated the most — eight — in his four terms. William Howard Taft picked six and is the only man to serve as both president and chief justice. Ulysses S. Grant and Dwight D. Eisenhower had five each.
“I think the big lesson to absorb from our history is it’s hard to know what you’re going to get when you put somebody on the Supreme Court,” said David Ramsey, a political science professor at the University of West Florida. “You just don’t know how somebody is going to behave once you put them in a position where they serve for life.”
They’re free, he says, from electoral politics after that.
“And so they can change. Maybe they’ve been hiding their true colors, maybe they’ve learned something while they’re on the court,” Ramsey said.
Some presidents have tried and sometimes succeeded, in putting on the court a family friend or associate. But at least one president sought to do just the opposite.
“There’s the strategy of President Eisenhower to put a political competitor on the Supreme Court in Earl Warren, and he seems to have regretted that decision later on,” said Ramsey. “Warren was a popular California governor at the time, and Eisenhower thought ‘I know just the thing to get rid of the competition. I’ll just hide them on the Supreme Court.’”
Warren served as chief justice from 1953 to1969. Forty years before President Biden’s nomination of Ketanji Brown-Jackson, the court’s gender glass ceiling was shattered by President Ronald Reagan in 1981.
“So today, I’m pleased to announce, I will send to the Senate the nomination of Judge Sandra Day O’Connor of [the] Arizona Court of Appeals for confirmation as an associate justice of the United States Supreme Court,” said Reagan.
“Reagan is probably the most prominent example in our recent past of saying, ‘If I get a pick, I’ll put a woman on the court,’” said Ramsey. “And Biden, in similar fashion, said, ‘If I get a pick, I’ll put a Black woman on the court.’”
President Lyndon Johnson, says Ramsey, showed extraordinary courage by nominating Thurgood Marshall as the first African-American to the high court.
“I believe he’s already earned his place in history, but I think it will be greatly enhanced by his service on the court,” said Johnson in his announcement in 1967. “He deserves the appointment; he’s best-qualified by training and by very valuable service to the country. I believe it’s the right thing to do. The right time to do it, the right man, and the right place.”
Johnson also didn’t have to go far to get Marshall, who argued before the Supreme Court in Brown vs. Board of Education which led to school desegregation and then served as Johnson’s Solicitor General.
“That could be the headline for LBJ’s presidency — ‘The time has come,’” said Ramsey. “And so the same with the Marshall appointment to the first African-American justice on the Supreme Court. LBJ was a very astute politician as president; so he knew what he was about when he picked Marshall.”
But for every Thurgood Marshall, Sandra Day O’Connor and Louis Brandeis, the first Jewish Supreme Court justice, Ramsey says there have been others that have not reached that rarefied air, including one high-profile failure, Reagan nominee Robert Bork in 1987. Chairing the Senate Judiciary Committee was Delaware’s Joe Biden.
“Forty million people watched him. He spoke,” Biden said. “Time and again raised the gavel and said, ‘Are you certain, Judge that you’ve had enough time to respond to the questions?’ And when it was all over, I said to Judge Bork, ‘Now Judge Bork, do you think you got a fair hearing?’ He said, ‘Yes.’”
“Bork we continue to study, and lessons continue to be learned about what the proper presidential response is to a candidate like Bork,” said Ramsey. “If the senate is not compliant, how long do you let them stay on the line before you pull them back out and try for someone else?”
Of course, nobody knows just how future Supreme Court justices will make their way to the bench, but UWF’s David Ramsey says one trend that’s beginning to emerge, is to serve as a law clerk for a retiring justice — a la Ketanji Brown-Jackson.
“Anthony Kennedy got two of his clerks placed on the court; and now Justice Breyer is getting one of his former clerks nominated,” said Ramsey. “Many of them are at work throughout the process of drafting the language of a Supreme Court opinion. And maybe that is the best preparation for serving on the court.”
Other issues regarding SCOTUS appear to be on the horizon. Article III of the United States Constitution established a Supreme Court without direction on the number of Justices that could be appointed. The question of more justices, first raised by FDR, has reemerged in recent years. Another challenge is to address what many believe is a political bent involving the court.