"Life is like a box of chocolates..."

It's not my habit to make much comment on American politics on this blog (the world sure ain't short of bloggers who do that on a permanent basis), but this business of Supreme Court Nominees interests me. It's easy to forget, for example, that Bush's latest nominee is set to replace, not a liberal appointed by Clinton or (in the mists of time) Carter, but a Conservative appointed by Reagan.

It always makes me think of what Alistair Cooke used to say about the Supreme Court. See, the thing is, it's an appointment-for-life (or it's at least up to the Justice to decide when to retire). Cooke often returned to the examples of Justice Oliver Wendell Holmes and Earle Warren, who were appointed by Presidents who were sure, so they thought, of their ground, positive they were making a politically sound appointment, and subsequently frustrated when their tame judges apparently turned on them. Cooke wrote, in 2001:

This may be a good time to say that every president of either party always says he will appoint justices to the court who are strict constructionists - that is, will interpret the Constitution literally without political bias or any attempt to reshape the law. And every president then appoints judges who share his political beliefs.
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Unendingly, year after year, administration after administration, this conflict grinds on, the opposition party ceaselessly and correctly accusing the party in the White House of appointing political judges.

When President Reagan appointed Mrs O'Connor there was no audible Democratic outcry. From her record on the appeals court she was a moderate who could be counted on to vote most of the time with the conservatives.

But, as so often happens even to sophisticated presidents who should know their history, even a moderate can turn immoderate.

President Eisenhower made the very conservative governor of California chief Justice. But Chief Justice Warren turned into a comparatively flaming liberal and led the historic majority decision in 1954 to render unconstitutional the separation of blacks and whites.

"The worst damn fool mistake I ever made," Eisenhower moaned in his old age.
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Now Mrs O'Connor has made no sharp left turn, performed no theatrics. She's a patient quiet pertinacious lawyer, notable for wanting to find exact legal grounds for her decisions.

She's surprised us from time to time by switching and voting with the liberal four, thus disappointing the Christian right, for instance, by upholding the abortion law.

The case of Sandra Day O'Connor is just one of the more recent examples of a right-wing or liberal president making a "sound" appointment, only to be dismayed when the judge appears to take the opposite line.

No matter what political trickery judges get up to in their careers before the Supreme Court, it is no indication of how they will behave once they are appointed for life and have complete independence and job security. A smart judge with an eye on the Supreme Court will surely look at the political colour of the administration and act accordingly.

President after President has made the mistake of trying to stuff the Court with cronies, and failing. It's the Separation of Powers in action. In the case of Supreme Court justices, and quite unlike Forrest Gump's box of chocolates, you really don't know what you're gonna get.