President Obama May Not Get What He Wants on the Supreme Court

Nominees have a long history of going astray after they don the black robes.

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They don't always get what they want, but I'm hoping that President Barack Obama sticks to his values as he nominates a new justice to the U.S. Supreme Court. That appointee would replace Justice John Paul Stevens, who has announced that he is retiring in June.

Here are a few examples of surprises to presidents and to senators who voted for these people who are guaranteed jobs for life:

Justice Stevens, once thought of as a moderate Republican, eventually became the leader of the liberal wing of the court during his 35 years on the bench.

Justice Hugo Black, a former member of the Ku Klux Klan, evolved into a key defender of the New Deal, the social revolution led by President Franklin D. Roosevelt, who appointed him, and a proponent of civil liberties and civil rights. Writing about Justice Black, Paul L. Murphy said in The Reader's Companion to American History: "When Franklin D. Roosevelt appointed him to the Supreme Court in 1937, critics objected because of his KKK past; but on the Court he proved to be an active constitutional populist .... In the final analysis, Black was a people's justice. His opinions were clear and moving, and his commitments were to a constitutional order that would extend ‘liberty and justice for all.'"

Black's tenure eventually overlapped with that of a President Dwight D. Eisenhower appointee, Chief Justice Earl Warren, named to the Supreme Court in 1953. The Warren Court gave us the end of legal segregation and many reforms in voting rights and in the criminal justice systems in the 1960s. That prompted Eisenhower to declare that the appointment of Warren, a fellow Republican and former friend, was "the biggest damned-fool mistake I ever made." But Warren later explained his shift from conservative law-and-order man to liberal this way: "On the court, I saw [things] in a different light."

When President Richard Nixon named Warren Burger as chief justice in 1969, he wanted to put the brakes on some of the activism of the Earl Warren years. But Burger did not exactly turn back the hands of time. One scholar wrote in 1981 that "the court is today more of a center for the resolution of social issues than it has ever been before."

When President John F. Kennedy named Byron White to the Supreme Court in 1962, and described him as "the ideal New Frontier judge," he probably didn't think that White would become the conservative that he ultimately was.

Conservatives were persuaded by President George H.W. Bush's team that David Souter was one of them when he was named to the Supreme Court. But he became more liberal during his 18 years there. It was his retirement in 2009 that paved the way for President Obama to appoint a Hispanic woman, Sonia Sotomayor, to the court.

Of course, there are some justices who live up to their billing--judges like Clarence Thomas, who has been exactly what President George H.W. Bush wanted: a black man who was young enough to be around for decades to transform the Supreme Court into a more conservative body. Justice Thurgood Marshall, the man whose seat he took but whose shoes he has not tried to fill, said upon his retirement: "My dad told me way back that you can't use race. For example, there's no difference between a white snake and a black snake. They'll both bite."

I harken back to Justice Marshall's words about snakes. Not all blacks are created in the same legal mold. I personally think it would be a mistake for Obama to cave in by committing to pick a person of a certain race or gender. Luckily, I don't have to make the decision.

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