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How Eisenhower thought Supreme Court justices should be chosen

Susan Eisenhower noted on the “Skullduggery” podcast that her grandfather, Dwight D. Eisenhower, a Republican, had appointed a liberal Democrat to the court.

“Wow. That’s a blast from the past.”

Dwight D. Eisenhower
Dwight D. Eisenhower
That’s in quotes, because it’s actually a quote from Susan Eisenhower, granddaughter of former President Dwight D. Eisenhower. But it’s the context, or perhaps the double context, that makes it worth a post.

Susan Eisenhower was a guest on “Skullduggery” last week, a political podcast to which I listen often and enjoy. She made reference to the fact that her grandfather, Dwight D. Eisenhower, a Republican, had appointed a liberal Democrat, William Brennan, to a vacancy on the Supreme Court because his previous Supreme appointees during his first term had Republican backgrounds.

Eisenhower had made two Supreme Court appointments during his first years in office. In his fourth year, heading into reelection in 1956, another Supreme Court vacancy occurred and Ike thought it was important to make a statement that lifetime Supreme Court appointments should not be used to pile up justices from the president’s own party.

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Susan Eisenhower has written several books about her grandfather, including one titled “How Ike Led.” (In case you don’t know, Eisenhower went by the nickname “Ike.”)

During her “Skullduggery” interview, she said that, when doing her research for “How Ike led”:

“I was amazed to see that in 1956, when another Supreme Court opening occurred, President Eisenhower asked his attorney general, Herbert Brownell, to find a Democrat. His reasoning was that the Supreme Court must be ideologically balanced, because it is a non-elected co-equal branch of government and the public has to have confidence in the Supreme Court, that it is apolitical.

“And I thought, wow, that’s a blast from the past.”

It is, although not that far in the past.

Presidents have been appointing justices for two and a third centuries. For most of that time, partisanship was much less of a factor than it has become recently. Many justices were confirmed in U.S. history, often unanimously or by overwhelming bipartisan votes, without any committee hearings in many older cases.

But recent history has changed all that. Democratic presidents are expected to appoint liberal justices, Republicans conservative judges, and preferably young ones so they serve for many decades.

Great efforts are made to anticipate how a potential nominee will vote on controversial cases that will set or break precedents. Although this is understandable, there’s something wrong with it. Laws are supposed to be made by elected legislators or members of Congress. But, especially in recent decades the high court has turned into a kind of unelected super-legislature, often suspected of pursuing policy goals rather than their intended job of interpreting laws according to the intent of those who wrote them, elected members of Congress and state legislatures.

Perhaps that’s a naïve take on the older history. But the newer history is very clear. Supreme Court appointments are highly scrutinized, partisanized and highly ideological to a degree that they undermine the older understanding about which branch is supposed to make the laws and which is just supposed to interpret and apply them to specific cases.

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I don’t assume that Susan Eisenhower is the authoritative guide on these matters. (By the way, her grandfather once famously said of his presidency: “I made two mistakes and both of them are sitting on the Supreme Court.” The Brennan appointment was one of the two he meant. But the other, and probably more significant appointment to which he referred, was Earl Warren, who was a Republican.)

You can access the full Skullduggery episode in which the exchange occurred here.

I should note that Susan Eisenhower appears in the second half of the “Skullduggery” episode. The first half is taken up with guest Rep. Jim Clyburn, the South Carolina Democrat whom George W. Bush dubbed “the Savior” for his key role in getting the Democratic nomination for Joe Biden (which, one assumes, means that Biden was the best choice to defeat Donald Trump and that Bush believed the defeat of Trump was necessary to “save” the American experiment in Democratic-Republicanism).

And, like Earl Warren, George W. Bush is a Republican.