ConfirmThem

By Marshall Manson Posted in SCOTUS — Comments () / Email this page » / Leave a comment »

I wanted to follow-up briefly on yesterday's opus about the politicization of the judiciary through the confirmation process.

The Left has spent the last four years laying the groundwork for liberal Senators like Chuck Schumer and Dick Durbin to undertake extensive and detailed questioning of judicial nominees concerning their positions on specific issues. The liberals unapologetically argue that the judicial confirmation process is and should be a political one, and they try to justify their self-serving outcome searching with allusions to historical precedent.

In particular, the Left likes to point out that the Senate rejected John Rutledge, President Washington's nominee to be Chief Justice of the United States, on purely political grounds. (For example, here, here, and here.) This historical tidbit has been so often repeated and relied upon that it has become ubiquitous in discussions about the role of ideology in the confirmation process.

Here's how the Center for American Progress (.pdf) spins the tale:

In 1795, after months of fierce debate, the Senate rejected President Washington's nomination of former Supreme Court Justice John Rutledge to be Chief Justice of the United States. Rutledge was a distinguished jurist who was clearly well-qualified for the post, but his nomination was defeated over his opposition to the Jay Treaty with Great Britain.

Unsurprisingly, the Left's portrayal of the Rutledge rejection is simply wrong.

Indeed, the historical facts bear little resemblance to the Left's creative depiction.

John Rutledge had served as an Associate Justice on the Supreme Court earlier in President Washington's term, resigning after two years to take what he viewed as the more prestigious post of Chief Justice of the South Carolina Supreme Court. (As an aside, given the more powerful role for the states at the beginning of our Republic, the Chief Justiceship of a state Supreme Court may have been a more powerful position, indeed.) In 1795, upon Chief Justice John Jay's retirement to become Governor of New York, President Washington nominated Rutledge to be Chief Justice of the United States.

The Senate being in its lengthy recess between sessions, Washington used his constitutional authority to appoint Rutledge to the post on a temporary basis. And so, John Rutledge became the second Chief Justice of the United States.

Meanwhile, as Rutledge learned of his appointment, the public was venting its outrage over the treaty that Chief Justice Jay had negotiated with England at President Washington's request. Though Washington favored the treaty and the Senate ratified it, when the public learned of the terms, they were furious. It was in this climate that Rutledge, now serving as Chief Justice, gave an injudicious and well-publicized speech in South Carolina proclaiming his vehement opposition to the treaty.

A short time later, Rutledge took his seat as Chief Justice to preside over the Supreme Court's August Term. But when the Senate reconvened in December, it promptly rejected Rutledge's nomination to be Chief Justice by a vote of 11 in favor to 14 against. The debate did not last for months. Indeed, it did not even consume an entire day.

Those are the historical facts.

So, just to be clear, Rutledge, while serving as Chief Justice, engaged in the very intemperate and injudicious behavior of voicing an opinion on a purely political question. Today, Rutledge might have been in violation of the canons of judicial ethics. Back then, the members of the U.S. Senate didn't need the canons to understand that judges could not properly be political figures and that Rutledge's foray into politics while sitting as Chief Justice had been improper.

And if the Senate in 1795 understood that politics had no place in the judiciary, surely today's Senate can learn the same lesson.

UPDATE: Cross posted at the Center for Individual Freedom, here.