Sixteen previous men have served as Chief Justice. A quick survey of all 16 shows that all of them had a more substantial public record than John Roberts. If G.W. Bush had an extraordinary record of appointing talented unknowns, then perhaps we could overlook this aberration. But with hundreds, perhaps thousands of bodies scattered throughout New Orleans, trust in Bush’s appointments is justifiably low.
Going Nuclear With The Stealth Candidate
After the worst week in the Bush presidency-yes, worse than 9/11-he has the audacity to up his stealth nominee to the Supreme Court into a nominee for the top seat-Chief Justice. There were already abundant reasons to oppose Roberts for any seat on the Court. So it was completely typical for Bush to take a dubious (at best) nominee, and try to elevate him even further.
There have been 16 Chief Justices in American history, and–as will be seen below–every single one of them had a significantly more extensive public record than this nominee. What’s more, one Chief Justice only served a single interim term, because the Senate refused to confirm him, and three other nominees withdrew because the Senate would not confirm them. Taken all together, the historical record shows Roberts to be an extreme aberration, who should be rejected out of hand.
The idea of appointing someone with virtually no record that he will stand by to the Supreme Court is bad enough. (All his work as a lawyer is being disavowed as “just serving his client”). But this is typical coming from a President whose own record and “accomplishments” are all spin.
Let’s look at the record. There has been a good deal of latitude in the degree of judicial experience that Chief Justices have had. Some have had none at all. But they have held other forms of government office, where they have been publicly accountable. First, let’s look at Roberts, then let’s look at the 16 previous Chief Justices.
The Extent of the Record for Roberts
Roberts served as Deputy Solicitor General under George H.W. Bush, and argued 39 cases before the Supreme Court. He was appointed to Circuit Court of Appeals for the District of Columbia in 2003, and has written 40 opinions, most of them narrow, and without dissents. Politically, this presents a low profile if one accepts the GOP rationale that all his other work was simply serving clients, and did not necessarily represent his views. However, this defense is coupled with a vigorous attempt to hide his views by withholding documents from his government service-which suggests deliberate bad faith in putting forth his nomination.
The Extent of the Record for Previous Chief Justice Nominees
In contrast, past Chief Justices have had a wide range of experience, from a former President to men who had won just one election to state-level office. Three never won any public office, but served 13, 14 and 16 years as Associate Justices, before being elevated to Chief. All were known quantities to a greater or lesser extent–quite unlike John Roberts, at least the John Roberts his defenders would like us to believe in.
Here then is a brief summary of the record, derived almost entirely from Wikipedia, so that the facts can be easily checked.
Wikipedia has a list of the Chief Justices in its entry on Chief Justice. The office got off to a rocky start. Washington made three appointments, none lasted long. Then Adams appointed Marshall, the principle of judicial review was established in Madison v. Marbury, and things got serious, with tenures lasting for multiple Presidential terms.
John Jay was appointed by George Washington in 1789. Jay served as the fifth President of the Continental Congress from December 10, 1778 to September 27, 1779. He was a diplomatic representative to France during the Revolutionary War, along with Benjamin Franklin and John Adams, and was one of the co-authors of the Federalist Papers. He was clearly a major political figure of the day.
John Rutledge was appointed by George Washington in 1795. He was a delegate to the First and Second Continental Congresses, helped write South Carolina’s state constitution, became president of the lower house of the state legislature, then governor. At the US Constitutional Convention he chaired the Committee of Detail. Washington appointed him to Supreme Court, where he served just two years before becoming chief justice of the South Carolina supreme court. Four years later, Washington appointed as Chief Justice, but he only served one term, as the Senate rejected his appointment, partly for political reasons-his opposition to the Jay Treaty (opposition to the treaty fueled the development of the Democratic-Republican [later Democratic] Party)-and partly because of his questionable mental health following the death of his wife.
Oliver Ellsworth was appointed by George Washington in 1796. Ellsworth represented Connecticut in the Continental Congress, in the Constitutional Convention (where he served on the Committee of Five, who prepared the first draft), and in the US Senate, where he was one of the state’s first two Senators, and chaired the committee that framed the bill organizing the federal judiciary.
John Marshall was appointed by John Adams in late 1800, and took office in early 1801. Marshall’s record was more slight than his predecessors, primarily because he often refused diplomatic appointments preferring to remain in Virginia. He served in the Revolutionary war, rising to the rank of captain. But in 1797 he did serve on the 3-man commission to negotiate with France–and wrote the blistering rejection of the attempted extortion in the XYZ Affair, which made him a sort of national hero. Adams wanted to appoint him to the Supreme Court as an associate justice, but he ran for Congress instead, and was elected in 1799. Adams appointed him Secretary of State in mid-1800, then appointed him Chief Justice.
Roger Brooke Taney was appointed by Andrew Jackson in 1836. He began his political career at the age of 22 in Maryland’s House of Delegates. He served in Maryland’s Senate, and was appointed Maryland Attorney General in 1827. Jackson appointed him US Attorney General in 1831. He was a politically controversial figure–not least for his role supporting Jacksons war against the Second Bank of the United States–but one with a long public record. The Senate postponed his initial nomination as an Associate Justice, but approved his appointment as Chief Justice the next year, after its makeup changed considerably.
Salmon P. Chase, appointed by Abraham Lincoln in 1864. He was a prominent Ohio lawyer, politician and anti-slavery advocate, who had a powerful impact on national politics. As a lawyer, he argued cases against slavery all the way to the Supreme Court (losing, of course.) In 1849 he was elected to the US Senate where he was a leading anti-slavery advocate. In 1855 he was elected governor of Ohio. He was re-elected to the Senate in 1860, but resigned to serve as Secretary of Treasury.
Morrison Remick Waite was appointed by Ulysses S. Grant in 1874. He had one of the slimmest resumes of any Chief Justice nominee, but was nonetheless a prominent and widely-respected figure at the time of his appointment. He served one term in the Ohio General Assembly in 1850, and declined an appointment to the Ohio Supreme Court in 1863. In 1871, Grant appointed him to a commission established to settle claims against Great Britain for its assistance to the Confederacy during the Civil War. The proceedings-in Geneva- resulted in an award of $15.5 million to the United States. Upon his return from Europe, Waite was elected to the Ohio Constitutional Convention of 1873 and was unanimously selected to serve as its president. He was Grant’s fifth choice-one turned him down, and three withdrew when the Senate threatened rejection.
Melville Weston Fuller was appointed by Grover Cleveland in 1888. He had the slimmest resume of an Chief Justice nominee, but had a long public record of his political views, in addition to a legal practice that took him before the Supreme Court. He came from a family of lawyers-both grandfathers were judges and his father was a prominent lawyer. He was a newspaper editor and minor political figure as well as a prominent lawyer, who argued cases before the Illinois State and US Supreme Courts. He served one term in the Illinois House of Representatives, and was a delegate at the national Democratic Conventions of 1864, 1872, 1876, and 1880.
Edward Douglass White was appointed by William Howard Taft in 1910. He was a Louisiana lawyer who served briefly in the Louisiana State Senate in 1874 and as an Associate Justice in the Supreme Court of Louisiana from 1879 to 1880. He served in the US Senate from 1891 to 1894, and served as an Associate Justice of the US Supreme Court from 1894 until his appointment as Chief Justice 16 years later. At the time, this was a point of controversy, as no previous Associate Justice had ever been elevated to Chief Justice.
William Howard Taft was appointed by Warren G. Harding in 1921. Taft was the only Chief Justice to also have served as US President. Before becoming President, Taft served as a federal Appeals Court judge, as Governor-General of the Philippines, and as Secretary of War.
Charles Evans Hughes was appointed by Herbert Hoover in 1930. Hughes was a Governor of New York, Associate Justice of the Supreme Court, and US Secretary of State, and narrowly lost the 1916 Presidential election to Woodrow Wilson.. He served as a judge of the Permanent Court of Arbitration and the Permanent Court of International Justice in The Hague, The Netherlands.
Harlan Fiske Stone was appointed by Franklin D. Roosevelt in 1941. Stone was dean of Columbia Law School, Attorney General of the United States, and Associate Justice of the US Supreme Court for 16 years before Roosevelt elevated him to Chief Justice.
Frederick Moore Vinson was appointed by Harry S. Truman in 1946. Vinson served in the House of Representartives (from Kentucky) for twelve years, served as a Federal Appeals Court judge from 1937 to 1943 and served as Secretary of Treasury under Truman before being appointed Chief Justice.
Earl Warren was appointed by Dwight D. Eisenhower in 1953. Warren served as District Attorney of Alameda County, California, California State Attorney General, and Governor of California-winning election three times, once with no opposition. He was the Republican Vice-Presidential candidate in the very close 1948 election.
Warren Earl Burger was appointed by Richard Nixon in 1969. Burger served under Eisenhower as Assistant Attorney General in charge of the Civil Division of the Justice Department, and then was appointed to the United States Court of Appeals for the District of Columbia Circuit, where he served 13 years until his appointment by Nixon.
William Hubbs Rehnquist was appointed by Ronald Reagan in 1986. Rehnquist served as an Assistant Attorney General under Richard Nixon, who appointed him to the U.S. Supreme Court as an Associate Justice in 1972. Reagan elevated him to Chief Justice 14 years later.
Conclusion
The point of the above summary is to show how standard it is for a Chief Justice nominee to have an extensive public record by which he can be known, and how deviant it is for a Chief Justice nominee to have such a slim public record-at least according to his own proponents-that nothing sensible can be known about him, and we must accept him simply because he has been nominated.
As for the argument that he should be approved simply because he has been nominated, the record shows that Washington’s second nominee was rejected, and that three of Grant’s nominees withdrew in the face of certain defeat, after his first choice turned him down. Even Grant’s fifth choice, however, had a much more substantial record than Roberts does. To think that George W. Bush is due more deference than George Washington and Ulysses S. Grant is clearly absurd. Yet, this is what Roberts’ defenders are arguing, in effect.
There are plenty of substantive reasons to oppose the Roberts nomination. The historical record shows that there is every reason to require a public accounting from him. To do otherwise would lower the bar for no reason whatsoever, except to hoodwink the American people.
