On the Side of History
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

President George W. Bush’s nomination of Harriet Miers to the Supreme Court has touched off many amusing spectacles these last few weeks – including the insistence, by critics of the nomination, on the immeasurably high standards of intellectual accomplishment that a Supreme Court nominee must meet.
You have to wonder which Supreme Court these high-minded critics have in mind. Surely they can’t be referring to the U.S. Supreme Court, which has historically served as a lifetime employment service for party hacks, bar association schmoozers, sycophantic coat holders and political cronies.
Cronies? Did someone say cronies? Yes, indeed. For this is what the court has been – off and on, but mostly on -throughout its history.
If you were to categorize Supreme Court nominees according to the reason presidents chose them, the slot for “Presidential Pal” would quickly flood over – while the category “Distinguished Constitutional Scholar” would be significantly less populated than “Sop to Special Interests.”
The Supreme Court, in other words, has seldom been a showcase of intellectual distinction. To judge by her background and public writings, the choice of Miers appears in line with the court’s most hallowed traditions.
If you doubt it, consult the indispensable “Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton,” Henry J. Abraham’s less-than-inspiring account of how justices get to be justices.
Abraham, a professor emeritus at the University of Virginia, is no cynic, and he often strives to put the best possible face on an otherwise dubious record.
He has kind words for the qualifications of Chief Justice Warren Burger, a Richard Nixon nominee, citing Burger’s tenure on the D.C. Court of Appeals. Abraham neglects to mention that Burger first came to Nixon’s attention not as a judicial thinker but as a political fixer – the campaign manager for Republican presidential candidate (and Minnesota governor) Harold E. Stassen in 1952.
Burger later influenced Nixon’s choice of his pal Harry Blackmun for associate justice, thus giving Blackmun, later lionized by liberals for his imperial ruling in Roe v. Wade, the weakest qualification in the court’s history: the friend of a friend of Harold Stassen. Cronyism once removed.
Nixon’s successor, Gerald R. Ford, then nominated John Paul Stevens to the court on the recommendation of his attorney general, Edward Levi. Levi vouched for Stevens’s qualifications, based on their many friendly chats at bar association meetings in their hometown of Chicago.
Even the greatest presidents (George Washington and Abraham Lincoln) didn’t do much better than the worst (Nixon). With some glittering exceptions, Washington stocked the court with old army buddies.
Lincoln nominated his campaign manager, David Davis, to the first vacancy in his term, and later he disposed of another political rival, Salmon P. Chase, by elevating him to chief justice. Given the rare chance to appoint four justices, Harry Truman used it to reward political friends for their puppyish loyalty to his administration.
Yet these choices appear Solomonic next to many others: unabashed grafters like Roscoe Conkling (nominated by Chester A. Arthur), for example, or corporate shills like Stanley Matthews (nominated by James Garfield).
And so it has gone, a long march of mediocrity or worse, with occasional, anomalous flashes of brilliance. Normally Harriet Miers would fit right in – if it weren’t for an odd turn the nominations have taken lately.
Though many of Miers’s liberal critics will hate to hear it, the march of mediocrity was killed off, or at least interrupted, by Ronald Reagan. His first pick, a politically well-connected state judge from Arizona named Sandra Day O’Connor, merely made good on his campaign pledge to nominate a woman.
But then Reagan got serious. Antonin Scalia had earned a reputation as a legal theorist while teaching at Stanford University and the University of Chicago. The brilliance and scholarly accomplishment of Reagan’s next nominee, Robert Bork, were universally acknowledged, even if most Democrats in 1987 deemed them insufficient to qualify him for the court.
(Many of these same Democrats, by the way, will now vote against Miers, citing her lack of brilliance and scholarly accomplishment. There’s no pleasing some people.)
President Bill Clinton continued Reagan’s pattern of seeking intellectual distinction with the nomination of Ruth Bader Ginsburg, a widely published Columbia Law School professor who had argued (and won) all but one of the Burger era’s sex discrimination cases.
What accounts for this new era of excellence? One possibility is that we really have created the meritocracy that successful baby boomers are always telling us about (it explains why they’re so successful!).
Another, more plausible explanation is the increasing importance of ideology.
The court having arrogated to itself the final say in many political and cultural matters, a president will want to be sure of a nominee’s views. And intellectually engaged professors like Scalia and Ginsburg will have firmer and more predictable positions than professional networkers like Blackmun and Stevens.
Needless to say, there’s little here to justify Miers’s nomination. A presidential pal with no record of scholarly engagement but many happy memories of bar association confabs, she represents a return to the older tradition of Supreme Court nominees. It’s difficult to defend her nomination on any grounds other than these: The president likes her, and the president gets to pick.
And the president has history on his side.
Mr. Ferguson is a columnist for Bloomberg News.