The Supreme Court has become as political an institution as the White House and the Congress--and increasingly more powerful. In the gridlock central that Washington is, who controls the Supreme Court may play a more profound and perpetual role on public policy than who controls the House of Representatives, Senate, or White House.
No wonder we're witnessing all the where-you-sit-determines-where-you-stand posturing of President Barack Obama and Senate Majority Leader Mitch McConnell, and their Democratic and Republican leaders and presidential candidates. These political players readily accept the ridicule of their shameless switch hitting because the hunt for political power trumps the hypocrisy of political positioning -- and the Supreme Court may be Washington's most potent political power.
The legal language of the court's opinions shouldn't delude anyone about the political character of the Supreme Court. In the early 1930s as it thwarted Franklin Roosevelt's New Deal legislative initiatives, the court often couched its decisions in lofty rhetoric about the commerce clause of the constitution. FDR knew what was really at stake, so he first tried to control the court by enlarging its size; failing that he replaced any conservative justice he could with the likes of Hugo Black, Felix Frankfurter and William O. Douglas.
When Earl Warren took over as Chief Justice in 1953, he moved the court decidedly to the left on a host of issues, including memorable decisions on civil rights (Brown v. Board of Education) and criminal justice (Gideon and Miranda). When Warren came to the Oval Office to tell President Lyndon Johnson that he wanted to retire on LBJ's watch, he was trying to give the President the opportunity to appoint a successor that would cement the court's liberal bent.
Within two weeks, Johnson nominated sitting Justice Abe Fortas as Chief Justice and his Texas colleague Homer Thornberry to fill the vacancy. LBJ wanted to protect his Great Society against an increasingly conservative Congress and the danger of a Republican successor.
Johnson saw the court as a means of preserving his reforms--everything from civil rights and affirmative action to the elementary and secondary education act's aid for parochial schools and controversial consumer, health and environmental measures, a number of which were already under attack in lower courts. He knew such fundamental changes were protracted battles that would continue on several fronts, most notably in the courts.
A Republican's filibuster killed the Fortas nomination. LBJ's nominee Homer Thornberry (who had cast the deciding vote in a 2-1 federal appellate court decision upholding school desegregation under the 1964 civil rights act), fell by the wayside without a vote in committee or on the floor. Republicans wanted presidential candidate Nixon to fill the vacancies.
After the Senate approved Nixon nominee Warren Burger to succeed Earl Warren as Chief Justice, White House aides leaked material about inappropriate financial conduct by Fortas forcing his resignation. Democrats retaliated by defeating two Nixon Supreme Court candidates; then confirmed Harry Blackman. But over time the Court got more deeply into hot button social and public policy issues (abortion, separation of church and state, limits of free speech, criminal and social justice) and narrowly divided on them. So any nominee that threatened to upset the balance of power there whistled political leaders in the other two branches, and their allied interest groups, to battle stations in order to maintain or wrest control of the Supreme Court.
With the court emerging as the most powerful branch of government in terms of public policy and social initiatives, battles over nominees became knife-and-chain street fights. Ronald Reagan nominee Robert Bork--eminently qualified as an attorney and legal scholar but extremely conservative--was savaged by Ted Kennedy and rejected by Senate Democrats.
Clarence Thomas, George H.W. Bush's conservative black nominee to replace LBJ's liberal justice Thurgood Marshall, spent hours before the Senate Judiciary Committee answering questions from Democrats about whether he or Anita Hill was telling the truth about an incident of alleged sexual harassment.
Today, like LBJ and also in a Presidential election year, Barack Obama seeks to put someone on the court to preserve his initiatives which are already being challenged in the federal courts. There's plenty of precedent for Obama to try to fill the vacancy and for Republicans to try mightily to block him. Nevertheless, expect this to be a peerless rumble in the Washington jungle because the gridlock between the Legislative and Executive Branches makes the Supreme Court the 800 pound political gorilla each side prizes.