Cooper: Nixon still haunting the court?

U.S. Supreme Court Associate Justice Ruth Bader Ginsburg recently broke precedent in speaking out about the fitness of a presumptive presidential nominee.
U.S. Supreme Court Associate Justice Ruth Bader Ginsburg recently broke precedent in speaking out about the fitness of a presumptive presidential nominee.

The ghost of Republican Richard Nixon may be haunting the halls of federal buildings in Washington, D.C.

Supreme Court Justice Ruth Bader Ginsburg's intemperate comments last week about Republican presumptive presidential nominee Donald Trump might be traced to the intense hatred for the 37th president and the politicalization of his Supreme Court nominees, a process that has continued for 45 years and has figured in the high court being as partisan as the Republican and Democrat parties.

It's not that ideological purity was ever demanded of Supreme Court nominees or their decisions. We wish it was, but it hasn't been going back to the beginnings of the republic.

But the politicalization of the process as policy is a relatively new animal, one that resulted in the defeat of two Nixon high court nominees, in the defeat of brilliant jurist Robert Bork nominated for the same office by Ronald Reagan, in the Bush v. Gore decision that essentially gave George W. Bush the presidency in 2000, and in the suggestions first by Democrats under Presidents George H.W. Bush and George W. Bush and now by Republicans under President Barack Obama that a new president be allowed to nominate a replacement justice.

Now we have Ginsburg, whose remarks to first the New York Times and then to CNN were not surprisingly partisan but were highly unusual in an election year where the decisions by future presidents might come under the scrutiny of a supposedly impartial justice.

"I can't imagine what this place would be - I can't imagine what the country would be - with Donald Trump as our president," she told The New York Times. "For the country, it could be four years. For the court, it could be - I don't even want to contemplate that."

"He is a faker," Ginsburg then told CNN. "He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that."

She has since said she regrets making her remarks, which received a bipartisan backlash, but she stopped short of apologizing.

But back to the 37th president.

Nixon was hated by the left for helping expose liberal State Department employee Alger Hiss as a Communist spy in 1948, for defeating Democrat Helen Gahagan Douglas in a 1950 California Senate race, and for his pouty 1962 post-election "last press conference" in which he said the media wouldn't have him "to kick around any more."

After Nixon resurrected his political career and won the presidency in 1968, he had the unusual opportunity to appoint a chief justice and three associate justices in his five and a half years in office.

His first appointment, Chief Justice Warren Burger, sailed through, but Democrats - in control of the Senate - rejected first one, Clement Haynsworth, and then another, G. Harrold Carswell, of his appointments for associate justice. Neither, it was said at the time and since, measured up to the Democratic Party's special-interest constituencies.

The failed nominations were the first since President Herbert Hoover's nomination of John J. Parker as an associate justice in 1930. Before that, the last previous failed nomination had been in 1894.

Democrats at the time also were smarting because Republicans in 1968 had filibustered the nomination by Democratic President Lyndon Johnson of Associate Justice Abe Fortas as chief justice. Republicans, though, believed Fortas was tainted, and Fortas in fact had to resign from the court in disgrace in 1969.

Since then, the Bork nomination was defeated in the Senate, two other nominees by Republican presidents had to be withdrawn, and still two more current justices nominated by Republicans found significant opposition by Democrats.

Nothing in the Constitution prohibits Supreme Court justices from speaking their minds, but the Federal Code of Judicial Conduct states that jurists do not make statements that would suggest they are trying to influence how voters react to politics or specific candidates. Imagine, for instance, what the outcry would have been if sitting Justice Samuel Alito had suggested across a variety of forums that Hillary Clinton isn't qualified to be president because of the recent findings by the FBI of extreme carelessness involving sensitive and classified material.

Indeed, according to Edward Whelan, president of the Ethics and Public Policy Center, Ginsburg's remarks may be a first.

"I am not aware," he said, "of any justice ever expressing views on the merits or demerits of a presidential candidate in the midst of the campaign. I am not a fan of Donald Trump's at all. But the soundness of [her] concerns about Donald Trump has no bearing on whether it was proper for her to say what she said."

Unfortunately, justices have a lifetime tenure, don't face voters or have to answer to ethics committees. But they should have absolute probity, and in this case Ginsburg - taking her cues from the recent history of the party that nominated her - failed miserably.

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