- The Washington Times - Sunday, July 24, 2005

There were some bumps along the way, but for the first 120 years or so, it was a pretty smooth ride. From George Washington in the late 1700s, right through William Taft in the early 1900s, presidents generally stuck to the golden rule that restraint should be exercised when picking a Supreme Court nominee.

Then came Woodrow Wilson, who in 1916 picked Louis D. Brandeis, a Jewish lawyer from Boston and a member of the more progressive wing of the president’s Democratic Party, to be the 60th justice in the court’s history.

Well-known as a liberal reformer and Zionist, Brandeis was immediately denounced as a “radical” by conservatives, and his nomination sparked a four-month political feud. Though he was finally confirmed to the court, the battle over his nomination demonstrated just how divisive the confirmation process could become.

Struggles over nominations to the Supreme Court have only increased in intensity in the decades since — perhaps peaking in the late 1980s and early ‘90s with the public spectacles that surrounded the Senate’s rejection of Robert Bork and the confirmation of Clarence Thomas.

After President Bush’s nomination of Judge John G. Roberts Jr. to the court last week, legal scholars say the confirmation process has become so politicized that both parties see Supreme Court nominations as an opportunity to better position themselves with voters in future elections.

Mark Moller, the Cato Institute’s senior constitutional studies fellow and editor of the Cato Supreme Court Review, said that “if the Democrats cave to Roberts, they’ll seem ineffectual to their base, so it’s an incentive to them to politicize the debate, whatever Roberts’ credentials are.”

“There’s no doubt that the process has gotten more politicized,” Mr. Moller said. “It’s gotten progressively worse with each president.”

While the power to appoint justices lies solely in the hands of the president, Congress has power to set the limit of how many justices there will be, and each justice must be confirmed by a majority vote in the Senate.

Before the Brandeis nomination made headlines in 1916, there were several heated fights over nominees, six of whom had been rejected by the Senate during the first century of the Supreme Court. But the early battles stemmed chiefly from the politics of senators and presidents, rather than the nominees themselves.

During the tenure of President Grant after the Civil War, Attorney General Ebenezer Rockwood Hoar was rejected. Grant later withdrew the nomination of Caleb Cushing after Republicans accused the nominee of having corresponded with Confederate President Jefferson Davis during the war.

But it was with the Brandeis confirmation that the first major “turning point” arrived in the way the confirmation process was conducted, according to legal scholars and historians, who say it marked the first time a nominee’s personal ideology had caused such intense political upheaval in Washington and around the country.

The result, according to an account by historian Melvin I. Urofsky, was that “every facet of the nominee’s life and career were examined in minute detail.”

“Despite the injection of some religious and social prejudices into the debate, the major issue at all times was whether or not an alleged ‘radical’ should be admitted into the sacrosanct — and conservative — citadel of the law,” Mr. Urofsky wrote.

The Senate confirmed Brandeis by a 47-22 vote, but the stage was set for many battles to come, battles that became even more personal.

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