Now that President Obama has officially launched the process to replace Justice Stevens, who announced his impending retirement on Friday, it is interesting to recall the approach President Ford took in 1975. While it represents a more non-ideological model than today’s Supreme Court selection process, there are likely to be similarities in administration screening, timing — and an eye to the political atmosphere in the nation.
Justice William O. Douglas, who had been in failing health for months and being pressured by some colleagues to retire, wrote to Ford on November 12, 1975 to let him know he would step down. (Douglas had served since 1939; he holds the record for longevity on the bench.)
Attorney General Edward Levi shepherded the process to name a successor. (This time around it will be Obama’s White House Counsel, Robert Bauer.) Levi gave Ford a list of ten candidates, which he and his staff had pared down from a field of twice that number. Levi also included a personal note that said the top three on which he “would place greatest emphasis” were U.S. Appeals Court Judge Stevens, Solicitor General Robert Bork, and Dallin Oaks, who was then president of Brigham Young University. Ford also initially was drawn to U.S. Appeals Court Judge Philip Tone, who, like Stevens, was on the Chicago-based 7th Circuit.
Levi and the rest of the team had set an informal age limit of 55. Stevens was exactly that. Levi, who knew Stevens from Chicago legal circles and steered Ford particularly to him, deemed Stevens “a judge of the first rank, highly intelligent” and “a moderate conservative in his approach to judicial problems.” Of Bork, who was known for his legal brilliance yet had played a controversial role in the 1973 Watergate-related “Saturday Night Massacre,” Levi said, “If Mr. Bork was appointed to the Court, there would be little doubt of his intellectual capacity for the work. There would be equally little doubt that, on the Court, Mr. Bork would provide strong reinforcement to the Court’s most conservative wing … .”
President Ford did not want an ideological lighting rod. He put a little “No. 4” next to Bork’s name on the list he carried around. He gave Stevens “No. 1” and penned himself a separate note regarding Stevens: “Supreme Ct – good man.”
Stevens’ name was announced November 28, a little more than two weeks after Douglas had made his retirement official. (Then, as now, administration aides had been working on their lists months before the official retirement announcement.) In 1975, many House and Senate leaders did not know the low-key Stevens, so initial reactions were dominated by questions. House Majority Leader Tip O’Neill said, “Who? … I never heard of him.”
Senate Majority Leader Mike Mansfield asked whether the reputed moderate jurist would “cause trouble with the Reagan people,” known for their highly charged conservatism and preparing to mount a presidential challenge to Ford.
Today, the Obama administration cannot help but take account of upcoming elections, weighing how a nominee might fare in confirmation hearings that would be held as the midterm campaign season begins and how Obama’s Court choice could then help or hurt Democrats in the fall elections.