The next time you hear a Democrat saying that President Bush must nominate a justice who will maintain the “balance” on the Supreme Court, remember who’s doing the talking...

Historical Imbalance

How quickly the Democrats forget their own history.

With Justice Sandra Day O’Connor retiring from the Supreme Court, the political heirs of Franklin Delano Roosevelt are insisting that the President must select a new justice who will not tip the balance of the highest court in the land.

Senator Joseph Biden, who has announced his own renewed presidential aspirations, claims the “bottom line is that whenever there has been a balance in the Court,” the President is duty-bound to choose a replacement who “has been more closely looked at relating to that balance.”

Senator Charles Schumer echoes the same talking point, asserting “we … expect the President to maintain the critical balance of the Court … by nominating a consensus … nominee.”  A balanced court, according to Senator Schumer, would have “one Scalia and one Brennan” — a conservative on the one hand, a liberal on the other, no more, no less.

And, even the Democratic Party’s longtime standard-bearer, Senator Edward Kennedy, has taken it upon himself to speak for the “American people,” instructing the President that he must “care deeply about the balance of [our] highest court.”

In doing so, the Democrats are turning a blind eye not only to the text and structure of our Constitution, but also to how their own Party’s most famous leader selected justices for the Supreme Court.  After all, how can Senator Schumer claim that no President has ever “sought to imbalance the courts” like President Bush without ignoring President Roosevelt’s struggle to tip the balance of the judiciary in the 1930s and ’40s?

It was just a little more than a half century ago that Franklin Delano Roosevelt believed it to be entirely proper — in fact, a necessity — for the President “to restore the Court to its rightful and historic place in our Constitutional Government” by appointing new justices who, he believed, would uphold his policies.  Indeed, the careful selection of new justices to change the balance of the Supreme Court, which had struck down several pieces of New Deal legislation in 1935-36, was President Roosevelt’s fall-back position when it came to “reorganizing” the judiciary.  His original plan was to “pack” the courts — most notably, the Supreme Court — by getting Congress to authorize new judgeships that he could fill immediately with jurists who he believed would be sympathetic to expanded federal power.

In other words, Franklin Delano Roosevelt, the Democrats’ model President, completely rejected the “balanced” position embraced by his Party’s current leaders.  Instead, President Roosevelt understood and exercised his constitutional duty to appoint judges consistent with and as an extension of his democratic mandate — not subject to some balancing act.

What’s more, President Roosevelt is not the exception, but rather the rule.

Abraham Lincoln didn’t seek to maintain a balanced Supreme Court when he appointed Salmon P. Chase to succeed Roger Taney (who authored the Dred Scott decision) as Chief Justice of the United States.  President Lincoln wanted to tip the balance of the Court so that it would uphold the emancipation of the slaves and the printing of a national currency, and he believed that Chase, an abolitionist and former Treasury Secretary, would do just that.  Like so many before and after him, President Lincoln was wrong, at least with respect Chase’s constitutional view of the legal tender acts, which the new Chief Justice struck down.  But this mistaken appraisal doesn’t take away from the fact that President Lincoln appointed “a man whose opinions [were] known” in order to change the balance of the Supreme Court, not to keep it intact.

You can read the history of president after president, Federalist to Democrat-Republican to Whig to Democrat to Republican, and each one has understood that the power to appoint judges, especially to the Supreme Court, entitles the President to alter the balance of the judiciary.  So, the next time you hear a Democrat saying that President Bush must nominate a justice who will maintain the “balance” on the Supreme Court, remember who’s doing the talking — just a politician who believes the status quo is the best the Democrats can do right now.

September 20, 2005
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