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Death of a Conservative Trojan Horse
By Mike Bayham
April 18, 2002

In theory, conservatives should dominate the United States Supreme Court. Since 1968, there have been only two Democratic presidents, Jimmy Carter and Bill Clinton. Carter, thankfully, is the only 20th century president to not appoint a Supreme Court Justice. During his eight years in office Bill Clinton appointed two justices, unapologetic liberals Stephen Breyer and Ruth Bader Ginsburg. Neither encountered any serious opposition in the US Senate.

Prior to Clinton's two selections, the only remaining justice chosen by a Democratic president at the start of the nineties was Thurgood Marshall, who was appointed by LBJ in 1967 and stepped down due to poor health in 1991.

Like a bad NFL General Manager, Republican presidents have squandered their "picks" when it came time to choose justices that would reflect the political and Constitutional philosophy of their administrations. Such past liberal stalwarts as Earl Warren, William Brennan, and Harry Blackmun were elevated not by Truman or Johnson but by Republicans Dwight D. Eisenhower and Richard Nixon. Placed on the Supreme Court by Republican presidents, many of their judicial appointees acted like Democrats as soon as they put on their robes.

On the present court, there are three conservatives (Chief Justice William H. Rehnquist and Associate Justices Clarence Thomas and Antonin Scalia), four who vote with the left (Clinton's two picks and Justices John Paul Stevens and David Souter) and two who are up for grabs (Justices Sandra Day O'Connor and Anthony Kennedy).

To the embarrassment of more than a few conservatives, the two "middle of the roaders" were appointed by arch-conservative Ronald Reagan. Of the four liberals, two (Stevens and Souter) were selected by Republicans. Ironically, David Souter, who was appointed by then President George H. W. Bush would later lobby hard for fellow Justice Anthony Kennedy's swing vote during the post-election period and would collude with the court's liberals in voting to allow the Democrats enough time to steal the presidential election from Bush's son in 2000.

It is apparent that the Republican Party has seen its fair share of RINO's (Republicans In Name Only) and liberal Republican Trojan Horses appointed to the Federal courts. However there was one time in which the tables were turned and it was an appointee of a Democratic president that would defy the president's party dogma as a Supreme Court justice.

That judicial anomaly, Byron White, passed away on Monday, April 15 at the age of 84.

White was John F. Kennedy's first appointment to the Supreme Court. The Colorado native was a professional football player before trading the gridiron for the court room. A personal friend of the president, White was appointed to the court from his position of Deputy Attorney General under Bobby Kennedy.

During his time on the court, White affirmed the "right to life" for the unborn in several cases and dissented in the landmark Roe vs. Wade ruling. White was far less charitable to criminals than his colleagues in "law and order" cases. Though not nearly conservative as Scalia or Thomas, White was to the right of many of the justices appointed by Republican presidents. White had spent 31 years on the court and when he stepped down in 1993 was replaced by Ginsberg.

White's passing brings up a reality that President George W. Bush is going to have to contend with in the near future: the filling of Supreme Court vacancies.

As many should recall, President Bush had a tough time getting some of his cabinet members confirmed by the US Senate. Attorney General John Ashcroft and Interior Secretary Gail Norton were run through the gauntlet and at times their nominations looked to be in jeopardy. Bush was forced to scuttle the nomination of his choice for Labor Secretary, Linda Chavez. One should keep in mind that Bush had these troubles when the Republicans controlled the US Senate.

Thanks to an opportunistic Jim Jeffords, the political landscape has changed for the worse for conservative court appointees. Mississippi jurist Charles Pickering's appointment was killed in the Senate Judiciary Committee along partisan lines and the president has recently dropped an early selection for US Attorney, Fred Heebe, due to pressure from NOW.

Several members of the Supreme Court are advanced in age and may very well step down before the end of Bush's first term. Ford appointee John Paul Stevens is in his early eighties, Nixon appointee Rehnquist is in his late seventies, and Reagan nominee O'Connor is in her early seventies.

Some of a more conservative or center-right philosophy might opt to retire before the presidential election to ensure that he or she is not later replaced by someone of a significantly contrasting ideology. Conversely some of the court's liberals might stick around till after the 2004 election for the same reason.

However the real fight for a strict constructionist view on the court, as history has shown us, will not be in the well of Congress' upper chamber, but in the minds of the president and his advisers. I am sure Nixon, Reagan and Bush (I cannot speak for Gerald Ford) were aghast to see how the men, and in Reagan's case woman, they elevated to the highest court in the land turned on the philosophical tone of their administrations.

The vetting process on the part of the executive branch should quietly begin in earnest now instead of when the need arises, for it is almost certain that Bush will at a minimum have the opportunity to name one individual to the Supreme Court. Extensive analysis of the general themes of their rulings should be made and arguments for their case, in addition to counter-arguments in response to anticipated Democratic partisan barbs should be developed.

Some of the "Trojan horses" on the court now came about due to the fact that the Democrats simply wore out the administrations on their previous nominations. In the end, some on the Republican side claimed victory on the fact that they were able to get anyone past the Democratic US Senate at all. However, the judicial legacies of some of the justices have shown that it would preferable to have an empty chair for a little while than it would to have a "confirmable" unknown quantity making poor rulings for decades.

Though it was the Greeks that destroyed Troy, in reality the Trojans were the ones that did themselves in when they opened the gates to take in the Trojan Horse. The Bush administration should be prepared to keep the "gates" shut as long as it takes unless they are sure they know what they are getting when the time comes to appoint a Supreme Court justice.