More than three decades have passed since a President nominated someone without judicial experience to serve on the US Supreme Court.
The last such nominations–those of William Rehnquist and Lewis Powell Jr.–were announced on the same day, October 20, 1971, by then President Richard Nixon. Nixon had run into problems getting sitting federal judges placed on the high court. His nomination of Clement F. Haynsworth Jr., chief judge of the Fourth US Circuit Court of Appeals, to fill the seat left vacant by the resignation of Abe Fortas, was rejected by the Senate in 1969. A year later, the Senate turned down Nixon’s nomination of G. Harrold Carswell, a judge on the Fifth US Circuit Court of Appeals, to fill the same vacancy.
In the fall of 1971, with vacancies created by the resignations of Justices John Marshall Harlan II and Hugo Black, Nixon opted for Rehnquist, an Arizona lawyer with close ties to conservative icon Barry Goldwater, and Powell, a former president of the American Bar Association. And, while the Rehnquist nomination created a bit of a stir, both men were confirmed before the year was out–giving Nixon a pair of “wins” in his long wrestling match with an overwhelmingly Democratic and ideologically muscular Senate.
On the surface, it would not seem that George W. Bush would have any reason to imitate Nixon’s approach. Bush’s first pick for the high court, John Roberts, a member of the US Circuit Court of Appeals for the District of Columbia when he was selected, was easily confirmed to replace Rehnquist as Chief Justice–winning the support of every Republican and half the Democrats in the Senate. And the Senate that Bush is working with has a solid Republican majority and a soft Democratic opposition that is far more pliable than the one Nixon confronted.
Indeed, if Bush faced a challenge as he selected a replacement for retiring Justice Sandra Day O’Connor, it came from the Republican right. Supportive but unexcited by Roberts, social conservatives made it clear that they wanted to see an abortion-opposing, gay rights-rejecting judicial activist as the next nominee from the President who repeatedly told Republican rallies that his favorite members of the court were right-wing Justices Antonin Scalia and Clarence Thomas. Kansas Senator Sam Brownback, a conservative firebrand who entertains notions of seeking the Republican nomination for President in 2008, recently went so far as to suggest that he would vote against a Supreme Court nominee who lacked a “solid and known” record of opposition to reproductive rights, same-sex marriage and the wall of separation between church and state.