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With Elena Kagan's nomination to the U.S. Supreme Court being considered by the Congress this
week, we have to wonder where she'll fall in the pantheon of Justices (assuming she's confirmed, of course …) Will she be
remembered for serving admirably on America's highest court, or will she be a
mere footnote in the history books?
Almost every President gets to make nominations to the high court (only three
of forty-four haven't -- Zachary Taylor and Jimmy Carter never had the chance, nor did William Henry Harrison (though considering Harrison died after only a month in office, we can forgive him ...)
-- some have made more nominations than others. George Washington holds the record with 11 (though, of course, he had to
fill all the slots once the Court was created). Second is Franklin D. Roosevelt, who appointed nine justices (and might have named even
more if his controversial plan to "pack the court" had succeeded).
William Howard Taft holds a unique position, in that not only did he appoint
five justices while serving as President, but he was himself named Chief Justice by Warren Harding -- becoming the only man to hold both positions.
Of course, once on the court, some justices exhibit peccadilloes that could
not have been predicted in the confirmation process: Justice John Harlan held weekly screenings of porno movies in the Court's
basement, in order to better help his fellow justices determine just what
pornography was (despite Justice Potter Stewart's declaration that "I know it when I see it"). Unfortunately for Harlan, as his eyesight began
to fail, he had to rely on Justice William O. Douglas to narrate the movies and describe the on-screen action.
Justice Harry Blackmun authored many opinions (some more controversial than others),
but apparently, his favorite topic of conversation came every March 8th, when
he would mark the anniversary of his appendectomy.
Justice Clarence
Thomas's nomination was one of the most contentious in history, but since his
approval is one the most silent of the current justices, almost never asking
any questions or making statements during arguments.
Justice Thurgood
Marshall demanded that all sessions be
adjourned by 1:00, so that he would be free to watch his soaps (though
whether he was watching All My Children or Days of Our Lives is a point of contention).
In the last few decades, some candidates have sailed through the process with
little controversy, while others haven't fared as well:
In 1968, Lyndon Johnson nominated Justice Abe Fortas to become Chief Justice (after using his considerable
political skills to persuade Arthur Goldberg to step down from the bench to become his ambassador to the United Nations, but Fortas's nomination was filibustered
and withdrawn.
In 1970, G. Harrold Carswell was dismissed as not being distinguished enough for the
Court. In defense of Carswell, Senator Roman Hruska of Nebraska asked, "Even if he is mediocre, there
are a lot of mediocre judges and people and lawyers. They are entitled to a
little representation, aren't they?"
The most controversial nominee in recent years was Judge Robert Bork, whose name has had the dubious distinction of becoming a
verb.
Following the judge's unsuccessful nomination in 1987, "to Bork" came
to mean "to seek to obstruct a political appointment or selection."
Whether Solicitor General Kagan becomes a justice or a figure of speech, only history --
and the Senate -- can say.
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