BETA
This is a BETA experience. You may opt-out by clicking here

More From Forbes

Edit Story

In Nominating Amy Coney Barrett To The Supreme Court, Trump Is Following In The Footsteps Of Lyndon Johnson And Richard Nixon

This article is more than 3 years old.

Seeking a Supreme Court nominee with an ideal mix of ideological beliefs and political benefits, Donald Trump settled on Judge Amy Coney Barrett. She checks all of his boxes: age and gender, check; endorsed by the Federalist Society, check; an adherent of the late Justice Antonin Scalia’s judicial philosophy, check; projected to hold the appropriate positions on abortion and religious liberty, check. This politicized methodology is a detriment to the Court. Stringent ideological litmus tests undermine the credibility of the justices as neutral arbiters and the utilization of nominees for electoral gains reduces them to partisan trophies. 

Trump may have ratcheted up this formulaic approach to new extremes, but he didn’t invent it. He is following the blueprint established by Lyndon Johnson and Richard Nixon. For most of American history, presidents had only sporadically and haphazardly considered the ideological and electoral ramifications of their nominations. By fixating on these qualities, Johnson and Nixon transcended their predecessors and revolutionized how presidents envisage justices. In emulating the Johnson-Nixon playbook, Trump has marked Barrett’s nomination as the apotheosis of the hyper-politicized process they ushered in a half century ago.

Johnson contributed to this revolutionary transformation through his pinpoint focus on judicial ideology. Eager to perpetuate the Warren Court’s liberal jurisprudence and terrified of the prospect of seeing his Great Society programs suffer the fate of Franklin Roosevelt’s New Deal initiatives at the hands of conservative jurists, Johnson resolved to place ideological liberals on the Court.

These two factors alone didn’t explain Johnson’s visionary outlook, however. By modern-day standards, the judicial legacy of his predecessors is startling. Only one of the six justices appointed by Harry Truman and John Kennedy became a liberal stalwart. Dwight Eisenhower, a Republican, fared worse. To his chagrin, two of his picks, Earl Warren and William Brennan, led the Court’s liberal revolution. The botched appointments, Eisenhower lamented, were the “biggest damn fool thing I ever did.” 

Mindful of their missteps, Johnson distinguished himself by grasping the significance of selecting ideologically reliable justices, so much so that he engineered two openings on the Court—duping Arthur Goldberg into resigning for a posting at the United Nations and nudging Tom Clark into retirement by naming his son Attorney General—to install his handpicked favorites, Abe Fortas and Thurgood Marshall. 

Nixon’s politically calculated selections also became the norm. Here again, context matters. Historically, presidents had been mindful of the political repercussions of their judicial appointments.  But few matched Nixon’s politicization of the Court during his 1968 presidential run. Even Roosevelt, just months shy of hatching his Court-packing plan, resisted pleas to campaign against the justices during the 1936 election.

Nixon, by contrast, positioned the judicial body at the center of his campaign. Exploiting the public’s concern over rising crimes rates and appealing to southern resentment over the Warren Court’s desegregation rulings, he pledged to “never make a liberal appointment to the Supreme Court.”  

Nixon’s success in linking his candidacy to future judicial nominations turned him into a bellwether, particularly among Republican candidates touting “tough on crime” judges during the 1980s and, more recently, Trump’s pre-election releases of lists of potential nominees.

After the election, Nixon further tied his electoral fortunes to the judiciary by basing his “southern strategy”—the plan to flip the Democratic stronghold in the South to the GOP—on the placement of two southern judges, Clement Haynsworth and G. Harrold Carswell, on the Court. 

Despite the humiliation of having the Senate reject both selections, his appeal to white southern voters succeeded. “Richard Nixon was a hero in the South,” Harry Dent, Nixon’s point-man in the region, observed after the defeats.  “No action by the president,” he concluded, “did more to cement the sinews of the southern strategy.” Dent was right: Nixon swept the South during his reelection.

When Nixon pondered nominating a woman to the Court in 1971, it wasn’t because of a latent support for feminism. He was merely applying the same thought process to a different swath of voters. “I don’t think a woman should be in any government job… because they are erratic and emotional,” he told John Mitchell, the Attorney General. “In a political sense,” Nixon expounded in another conversation, “I lean to a woman only because… we got to pick up every half a percentage point we can.”

Trump has made similar calculations. Polls confirm the importance of choosing conservative ideologues to his backers and no action earned him greater admiration from his supporters than his two previous Court appointments. Even as he has been dogged by accusations of sexual misconduct, Trump has again leveraged a nomination to appeal to his base. Considering how far behind he is in the polls, however, Trump will have to hope for a far greater boost from the selection than a half a percentage point.

Follow me on TwitterCheck out my website or some of my other work here