Over the last five decades or so, who, from the perspective of the avowed principles of the appointing President, was the worst appointment to the Supreme Court? Reasonable minds could debate that question for some time, as there is certainly no shortage of plausible candidates. Indeed, those of us who rue the Supreme Court’s lawless judicial activism must take note of the fact that 17 of the 23 justices appointed to the Court since the beginning of the Eisenhower administration have been Republican appointees.
Several events this week have focused my musings on a slightly different question: Which President made the worst choice between his two final candidates?
On Tuesday, I had the pleasure of speaking on “The Supreme Court, the Constitution, and Foreign Law” to the Houston Lawyers Chapter of the Federalist Society. I was honored to have in attendance, and to meet, three Fifth Circuit judges—Chief Judge Edith Jones, Judge Harold DeMoss, and Judge Jerry Smith—as well as a number of state judges. The evening before, I attended the Astros game at beautiful Minute Maid Park and sat 20 or so rows behind former President George H.W. Bush.
In 1990, the final two contenders to replace retiring Justice Brennan were David Souter and Edith Jones. President Bush, of course, made the fateful decision to nominate David Souter over Judge Jones. It is difficult to imagine a nomination decision that proved worse.
One serious contender, though, would be President Ford’s 1975 selection of John Paul Stevens over the Ninth Circuit judge for whom I later clerked, J. Clifford Wallace. Stevens, of course, celebrates his 86th birthday today. On Tuesday, Howard Bashman reported on his indispensable How Appealing website (which has just moved to this new address) that the American Judicature Society is honoring Judge Wallace with its Edward J. Devitt Distinguished Service to Justice Award. Judge Wallace is deeply deserving of this honor and would have made an outstanding justice.
By all indications, former President Ford—who in 1970 led an effort to impeach Justice Douglas, whose seat Stevens later filled—is happy with the decision he made, but no serious proponent of judicial restraint would be.