In his two terms as President [1953-1961], Dwight Eisenhower appointed five justices to SCOTUS, notable among them Earl Warren, former Governor of California, and William Brennan. All were chosen, as historians note, more for political considerations than judicial philosophy or views. Warren and Vice President Richard Nixon were mortal political enemies and his appointment to the Supreme Court insured clear sailing for Nixon in later California campaigns. Brennan’s recess appointment in 1956 was intended to boost Eisenhower’s appeal to Roman Catholic voters in the northeast.
Anecdotal evidence exists that Eisenhower regretted in particular these two choices to SCOTUS because they participated in decisions that overturned a number of deeply held conservative beliefs, including “separate but equal,” expanded privacy and sexual rights, and criminal rights, among others. Historical consensus is that President Eisenhower was a “gradualist” in his views on social progress.
The conservative wing of the GOP grew fiercely critical of Eisenhower’s judicial choices and came to suspect his bona fides on behalf of the party and its emerging shift to the right especially among southerners Following the Warren Court’s 1954 ruling in Brown v. Board of Education, billboards appeared in southern states urging impeachment of Earl Warren. In 1957, Eisenhower sent federal troops to Little Rock [Ark.] to ensure the peace as its schools were integrated under court order and the state political leadership challenged them. Also noted for his leadership in forging the nation’s interstate highway system, extreme conservatives cited these policies and actions as evidence that Ike was a fellow-traveler socialist.
Nearly six decades have passed since the Eisenhower administration, and the skirmishes that surround Castle SCOTUS have not only continued unabated but have become acutely dangerous to the nation’s highest court and its jurisprudence. Unprecedented as it was, the GOP’s political insult to President Obama’s SCOTUS nominee, Merrick Garland, only further advanced the application of an ideological litmus test for nominees. For the Senate majority leader to proclaim blocking Garland’s nomination “one of my proudest moments” only stands to embellish and deepen the ideological abyss in favor of a list of pre-approved and -vetted candidates whose judicial philosophies were scrubbed for ideological purity. This view is further evidenced by President Trump’s announcement that his nominees were anticipated to be antithetical to Roe v. Wade.
What was so important, so crucial about Brett Kavanaugh? After all, it turns out that on the DC Circuit Court, he and Garland issued concurring opinions in the vast majority of cases in which they participated. What did his ardent, Kamikaze supporters see that the rest of us didn’t?
Brett Kavanaugh became the battering ram to the doors of Castle SCOTUS, likely requiring an equally harmful, bellicose response to future nominations. At this point, it remains to be seen how the seating of a “proven” ideologue is received by his bench mates on the court and by his proponents. If, in fact, he rules against Roe, those to whom he offered assurances to the contrary are likely to be disappointed, affirming that litmus testing may be attractive but imperfect, resulting in an “Eisenhower” effect.
While the Kavanaugh battle may have been the proudest moment for some, it is not one for the American people. SCOTUS and the nation would have been better off were the nominee chosen for political rather than ideological reasons and allowed to develop jurisprudence along with the rest of the members of the court. Carefully curated candidates like Kavanaugh only raise suspicions about their background especially when responses to questions appear cagey, deflective, and, at times, insolent.