Here's a good story that should have
had a sequel.
About 100 days after he suddenly found
himself president of the United States, Harry S Truman had to fill
his first vacancy on the Supreme Court. In 1945, the Court was
composed of seven Democratic appointees and one Republican.
Himself a Democrat, Truman naturally
wanted to reward a member of his own party. He was said to have
considered several possibilities, and the Secretary of Labor claimed
that Truman had promised him the slot.
The Senate had a Democratic majority,
though many Democrats were southern conservatives, often closely
aligned with the Republicans. Truman's advisors urged him to name a
Republican, a move never before made by a Democratic president. He
decided to follow their advice.
He finally settled on Sen. Harold H.
Burton of Ohio. Burton had been a member of the Truman Commission,
the watchdog body that fought wasteful military spending during World
War II. Truman found him thoughtful and honest. Above all he
supported the role of Congress in lawmaking and a limited role for
the Court.
Burton, a former mayor of Cleveland was
originally from Massachusetts and a Bowdoin College graduate. He was
nominated and confirmed in a single day. The Democrats supported
their president and the GOP supported a Republican. Above all,
senators readily supported one of their own.
The new justice was no legal theorist,
but he was an effective and respected jurist. Few would ever know
that Chief Justice Earl Warren had allied himself with Burton, a
long-time opponent of racial segregation. Together, they carefully
forged the unanimous Court that ended school segregation and
"separate, but equal."
Fast forward to 2016. The sudden death
of Justice Antonin Scalia created a vacancy on the Court. President
Obama sought to replace the conservative justice with a more moderate
jurist. But the Senate was controlled by Republicans who wanted to
replace Scalia with an exact copy.
Obama nominated a highly qualified
judge, but Senate Majority Leader Mitch McConnell told him face to
face, that he would block any Obama nominee. He expected the GOP
would win the presidency, though a Republican could not take office
for about a year. He intended to keep the seat vacant until then.
While nobody doubted the qualifications
of Judge Merrick Garland, Obama's nominee, nobody could reasonably
expect him to be confirmed. Obama was reluctant to retreat in the
face of McConnell's obstinacy. The White House seemed frozen.
This scenario worried supporters of the
Court's Roe v. Wade decision, which had affirmed that
abortions are legal. With a new Scalia, the threat of the Court
reversing that decision might remain a real possibility.
The problem was not about Obama
refusing to back down. It was about his failure to try to
outmaneuver McConnell. Obama was not Truman.
If Obama had followed Truman's action,
he might have ended up with a new justice who was favorable to Roe
v. Wade. How?
Obama might have appointed a Republican
senator to the Court. Alaska Sen. Lisa Murkowski is rated as a
moderate who supports Roe. Her appointment would place on the
Court its only justice without an Ivy League law school degree, which
could add to her appeal. And it would be a first for Alaska.
Would McConnell block consideration of
her nomination? Senatorial courtesy plus party loyalty would have
virtually required him to let her enter the confirmation process.
She would have access to make her case with her colleagues at any
time, a privilege that was denied to Garland.
Allowing her to move the Court would
have been a major boost for the GOP, which faces declining support
from women.
If Murkowski had gone to the Court, she
would have left one less appointment for President Trump to pick off
the list of conservatives given to him. Even if he appointed a
conservative when the next vacancy occurred, Murkowski could have
become the swing vote on the Court.
Obama would have produced change, as he
had promised. Even in the unlikely case Murkowski rejected the
appointment or was denied confirmation, Obama would have made a
gesture to provide the kind of cooperation that voters have said they
want.
In the 2016 election campaign, the
question of the Supreme Court vacancy faded from view, becoming a
non-issue. If Obama had sought to appoint a Republican woman to the
Court, he may well have enhanced the chances for his own party in the
presidential and congressional elections.
Lacking this move, Harold Burton
remains the only Republican appointed to the Court by a Democratic
president.