If you ever wonder about the origins and depths of the movement-conservative fear of “betrayal” of the Cause by Establishment Republicans, consider this post by Ed Whelan at National Review today, entitled “This Day in Judicial Activism:”
1957—President Eisenhower’s nomination of William J. Brennan, Jr. to serve on the Supreme Court is confirmed by the Senate. Brennan, a former New Jersey supreme court justice, is already serving on the Court by virtue of Eisenhower’s October 1956 recess appointment of him. Eisenhower’s selection of Brennan—which Eisenhower later identifies as one of his two biggest mistakes as president (see This Day item for March 1, 1954)—is said to have resulted from a recommendation by his campaign advisers that an appointment of a Catholic Democrat from the Northeast would attract critical voters. So much for basing Supreme Court selections on short-term political calculations. In retrospect, that recommendation appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57%-42% in the popular vote and 457 to 73 in the electoral college.
In his 34 years on the Court, Brennan deploys his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution.
As you might have guessed, Whelan’s 1954 reference is to Ike’s earlier appointment of the Great Satan himself, Chief Justice Earl Warren.
These disasters (from a conservative point of view) were hardly isolated. Richard Nixon appointed Roe v. Wade author Harry Blackmun; Gerald Ford’s brief presidency produced long-time Supreme Court liberal John Paul Stevens, and Poppy Bush put the ultimate Stealth Liberal, David Souder, on the High Court, an act for which the later nomination of Clarence Thomas was a very loud apology. Worse yet, St. Ronald Reagan was responsible for Sandra Day O’Conner, and depending on where Anthony Kennedy lands on a series of big upcoming cases, his appointment, too, could wind up earning a conservative Day of Infamy.
You’d have to say everything about Mitt Romney makes him suspect as the kind of Republican president who might make an insufficiently right-wing Court appointment. And this is precisely why I’d bet the farm (if I had one) that by the time November rolls around the Federalist Society wing of the conservative movement will have extracted so many private and public blood oaths from Romney on the subject that should he even think about a less-than-orthodox nominee, Satan would appear in the West Wing and snatch Mitt right down to hell.
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