POLITICS HAS ALWAYS PLAYED A PART IN PICKING HIGH COURT JUSTICES

The television panelists were analyzing President Clinton's nomination of Judge Ruth Bader Ginsburg to the Supreme court. There was an ex-law school dean, two women's rights activists, and two journalists specializing in the judicial process. All lavishly praised Judge Ginsburg skills and qualities. Then the discussion turned to the "politics" of the appointment. They agreed that "politics" had a part to play when Clinton passed over Bruce Babbitt and Stephen Breyer. They bemoaned the fact that the Supreme Court selection process had become politicized by Ronald Reagan and George Bush, they claimed. As far as these panelists were concerned, history had but a 12-year time span.

What about the Founding Father of Founding Fathers, George Washington, who carefully screened his 11 nominees (one not confirmed) to the Supreme Court to make sure they were all rock-solid Federalists? Washington liked Thomas Jefferson as his Secretary of State, but he most certainly didn't want that dangerous Jeffersonian political philosophy reflected on his Supreme Court.

President John Adams appointed a deft politician, John Marshall, as Chief Justice to perpetuate the Federalist cause, and Marshall did so for 34 brilliant years on the court. President Andrew Jackson wanted his own politician, Chief Justice Roger Taney, to guarantee a long run for Jacksonian democracy and the rights of Southern slave owners. Taney did so for nearly three decades, writing the Dred Scott decision three years before the Civil War and staying on through Lincoln's first term.

President William Howard Taft made a record half dozen appointments to the Supreme Court during his single term. All six were, by conscious design, cut from Taft's conservative cloth. When President Harding later appointed Taft Chief Justice, he allowed Taft to pick two more of the same type, making Taft one of the great political court packers of all time.

Woodrow Wilson created judicial greatness when he nominated the first Jewish Justice, Louis Brandeis. Wilson later created judicial infamy when, in order to get rid of his quarrelsome Attorney General, he dumped James McReynolds, a professional bigot, on the Court.

Franklin Roosevelt made no bones that he wanted safe New Dealers on the branch. The litmus test of the Roosevelt era was a generous, pro-government reading of the Commerce Claus of the Constitution. Harry Truman picked three of his political friends for the Court. Richard Nixon wanted "law and order" types. His litmus test was putting criminals in jail and keeping them there. Reagan and Bush wanted ideological, pro-life, "strict constructionist" conservatives.

Clinton, at first, wanted a politician with a "big heart," a definition fitting Mario Cuomo to a T. Cuomo declined. Later on, Babbitt seemed to meet the description, but environmentalists said he was needed at the Interior Department. By this time, the quest was for a "judicial moderate," with either Breyer or Ginsburg fitting that test.

Politics has been part of the judicial selection from the earliest days of the Republic. To pretend otherwise is to distort history. When a politician a president is one, you know selects a justice who will serve for life, he wants someone who shares his general views. Only once has an American president gone out of his way to ignore politics and nominate the "best person available." Herbert Hoover picked Benjamin Cardozo in 1932. Cardozo was an outstanding justice. Hoover was a poor politician.