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The Presidency by Hugh Sidey: Citadel on a Hill

4 minute read
Hugh Sidey

When the antiabortion shouting is finally muffled, as it will be, the nomination of Sandra O’Connor to the Supreme Court will emerge as the balanced and responsible presidential action it was intended to be. Dozens of Ronald Reagan’s aides, acting more like clinical psychologists than bureaucrats, probed her shadings of emotion, her intellect, her theology. O’Connor’s background and that of her family were searched by computer. She was, to a remarkable degree, judged by a man who sees more and more each day that he must be President to a nation and not to a single-interest group.

One might expect that Reagan’s first nominee to the Supreme Court would have had a certain intimacy with the White House or some special link to the Oval Office. But that is not the case. O’Connor is as independent and self-contained as any court nominee of the past two decades. She may reflect the White House philosophy, but she is not beholden to it, not bound to any mission or personal power adventure. Her nomination may be certification of a fact that has been dawning: the court is truly a citadel on the Hill—a part of Government but removed from it, as powerful as ever but beyond the reach of partisanship.

It was not so long ago that the man in the Oval Office considered the court either an adversary to be intimidated or a part of his private preserve, peopled with enough Justices from the political system to allow room for discreet wheeling and dealing behind the scenes.

Lyndon Johnson leaps to mind. He was a product of the tumultuous Roosevelt years, when the court was more enemy than friend. The goal was to get enough of the old gang aboard to have the court with you instead of against you. A molder of men, Johnson knew how to get along with his court. Tom Clark and William Douglas were longtime New Deal buddies, and he kept the friendships going over lunch and on the phone. Hugo Black was out of the Senate tradition, and Earl Warren was a former Governor, the ultimate breed of political survivor. When L.B.J. wanted to clear the air about the Kennedy assassination, he never worried more than a second or two about the sanctity of the court. He went after Warren with his full guile and authority, rejecting Warren’s first shocked refusals to head a special commission and simply wearing the man down with the old Johnson “treatment.” Deciding that he wanted Justice Arthur J. Goldberg to be his U.N. Ambassador, Johnson reckoned that since he had pushed Goldberg’s appointment (by Kennedy) to the court, he had a right to take him off. Using his powerful personality, L.B.J. persuaded Goldberg to take the lesser job. Johnson was still working the old game when he named his long-time crony and lawyer, Abe Fortas, to succeed Warren as Chief Justice. That one fell through because of Fortas’ conflict-of-interest problems and Johnson’s unhappy departure from the White House.

Richard Nixon harbored some of Johnson’s political sentiments about the purposes and authority of the court. The Senate rejection of his nominees, Clement Haynsworth and G. Harrold Carswell, is now history. Nixon was in utter despair when he learned that his own appointee, Chief Justice Warren Burger, had ruled that Nixon had to surrender the White House tapes. That was a pivotal drama in the Watergate scandal. Things were changing.

Modern media had discovered the power of the court, the entertainment value of the obscure doings in the shadowy marble chambers at the far end of Pennsylvania Avenue. The Justices became good television; the collection of gossip in the book The Brethren was worth big money on the publishing market. In singular fashion, the court was raised still higher on its public pedestal.

In an extraordinary way, this deeper awareness and understanding of the court have been focused in Reagan’s time to produce the nomination of O’Connor. She seems to be a person in harmony with the White House. But she also gains credence as a potential Justice by her distance from the White House that proposed her.

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