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Crisis at the Supreme Court

September 23, 2019 in Economics

By Ilya Shapiro

Ilya Shapiro

When Justice Charles Evans Whittaker retired in March 1962 after just over five years on the Supreme Court—he had suffered a nervous breakdown and was famously paralyzed with indecision—John F. Kennedy had his first opportunity to shape the high court. The youthful president selected a man of his own generation, Byron White. White had met JFK in England while on a Rhodes Scholarship—after having been runner-up for the Heisman Trophy and spending a year as the highest-paid player in the NFL—and the two became fast friends.

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White was a vigorous 45 and serving as the deputy attorney general under Robert F. Kennedy. Kennedy formally nominated him on April 3, 1962. Eight days later, White had his confirmation hearing, a quick 90 minutes including introductions and supporting testimony from various bar-association officials (during which the nominee doodled on his notepad). What questioning there was largely concerned the nominee’s storied football career. The Judiciary Committee unanimously approved him, and later that day so did the Senate as a whole, on a voice vote. My, how times have changed.

The battle to confirm Brett Kavanaugh reminded us yet again that the Supreme Court is under the same toxic cloud that has enveloped all of the nation’s public discourse. Ironically, Kavanaugh was nominated in part because he was thought to be a safe pick, more easily confirmable than other short-listers and with a long public career that had been vetted numerous times. Despite attempts to portray him as extreme, he was firmly part of the legal establishment, specifically its conservative mainstream—and had displayed a political caginess that made some on the right worried that he would be more akin to Chief Justice John Roberts than Justices Antonin Scalia or Clarence Thomas. As it turned out, of course, 11th-hour sexual-assault allegations transformed what was already a contentious process into a partisan Rorschach test. All told, Kavanaugh faced a smear campaign unlike any seen since at least Robert Bork more than 30 years ago.

In 1987, Senate Democrats had warned President Ronald Reagan that nominating Bork—then a judge on the U.S. Court of Appeals for the D.C. Circuit after having had a storied career as an academic and government lawyer—would provoke an unprecedented fight. On July 1, 1987, the very day that Reagan announced this pick, Senator Edward Kennedy went to …read more

Source: OP-EDS

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