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Court ‘balance’ has often swung

Recent controversy over the recent Supreme Court nomination and its impact on the balance of the court suggests an historical analysis might provide some insight into the matter.

I use the political party (D or R) of the president making the nomination as proxy. Judicial temperament further defines the candidate.

Rs say “the constitution says what it says” (sometimes called textualist or strict constructionist) and the Ds view it as a “living document” and changes with the times (activist or interventionist).

I start with the Franklin Delano Roosevelt presidency.

FDR served most of three terms and made nine nominations (Black, Reed, Frankfurter, Douglas, Murphy, Stone Jackson, Byrnes and Rutledge, who replaced Byrnes).

He selected eight SCOTUS judges.

His successor, President Harry S. Truman, nominated two justices, Vinson and Burton, who replaced Roberts (R). So our starting point is 9 Ds to 0 Rs.

President Dwight D. Eisenhower made five nominations during his two terms (Warren, Harlan, Brennan, Whittaker and Stewart), which implies a change to 4D-5R.

Late in his term, he was asked if he had made any mistakes.

His response: “Yes, three — and two of them (Warren and Brennan) are on the Supreme Court.”

So the change was only to 6D-3R, and Ds remained in control.

President John F. Kennedy made two nominations — White for Whittaker (R) and Goldberg for Frankfurter — shifting the balance to 7D and 2R.

President Lyndon Johnson made two nominations (Fortas for Goldberg and Marshall for Clark) with no change in balance.

Richard Nixon made four nominations (Berger for Warren, Blackman for Fortas, Powell for Black, and Rehnquist for Harlan). With Berger being an activist judge, the balance shifted only to 4D-5R.

President Gerald Ford made one nomination (Stewart for Douglas) turning the court to 3D-6R.

President Jimmy Carter had no nominations.

President Ronald Reagan made three nominations (O’Connor for Stewart, Scalia for Berger and Kennedy for Powell). O’Connor and Kennedy proved activist and the court turned 5D-4R.

President George H.W. Bush made two nominations (Souter for Brennan and Thomas for Marshall). Souter proved activist and the court ended 4D-5R.

President Bill Clinton had two nominations (RBG for White and Breyer for Blackman) and the court moved to 6D-3R.

President George W, Bush made two appointments (Roberts for O’Connor and Alito for Rehnquist), moving the balance to 5D-4R.

President Barack Obama made two nominations (Sontomayor for Souter and Kagan for Stevens), moving the balance to 6D-3R.

President Donald Trump has made three nominations (Gorsuch for Scalia, Kavanaugh for Kennedy, and now Barrett for Ginsburg), which would shift the balance to 3D-6R.

Considering the period since FDR, several observations can be made.

First, the balance of the court has swung wildly over the years — and is rarely balanced at 5-4 or 4-5.

Second, over the period, the Ds have had much more dominance than the Rs.

Third, judicial temperament matters — in addition to nominating party.

An activist becoming more activist doesn’t change the balance, but a textualist becoming activist, does.

Chris Gable is an occasional contributor to the Mirror’s Opinion page. He resides in Altoona.

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