George Will

WASHINGTON -- Stiffening their sinews and summoning up their blood, pugnacious liberals and conservatives who relish contemporary Washington's recurring Armageddons are eager for a summer-long struggle over Barack Obama's nominee to replace Supreme Court Justice John Paul Stevens. They should pause and ponder how recently and radically the confirmation process has changed.

By 1939, the Supreme Court had been embroiled in political controversy for half a decade. It had declared unconstitutional some important New Deal policies, and FDR had reciprocated by attempting to "pack" the court by enlarging it, which had earned him a rebuke in the 1938 elections. Yet when on Jan. 5, 1939, he nominated Felix Frankfurter to fill a court vacancy, the Harvard law professor sailed through Senate hearings and the confirmation vote in 12 days. It was a voice vote, with no audible dissent.

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On March 20, FDR nominated William O. Douglas to fill another vacancy. Although the 40-year-old Douglas had no judicial experience -- he was chairman of the Securities and Exchange Commission -- and would be the youngest justice in more than a century, he was confirmed 15 days later. No witness testified against him.

Linda Greenhouse of The New York Times notes that when Stevens was nominated in 1975 to fill the first vacancy since the 1973 Roe v. Wade decision, he was asked no question about abortion during his confirmation hearing. He was confirmed 98-0, as was Antonin Scalia in 1986. Things changed the next year, when Ted Kennedy used a demagogic Senate speech to launch a successful liberal crusade against Robert Bork.

As Stevens departs, the eight remaining justices are all products of the Harvard, Yale or Columbia law schools; all are former federal judges. Professor Terri L. Peretti, a Santa Clara University political scientist, notes (in Judicature, Nov.-Dec. 2007) that the court has often included judges with political experience.

George Will

George F. Will is a 1976 Pulitzer Prize winner whose columns are syndicated in more than 400 magazines and newspapers worldwide.
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