GOP Presidents Have a History of Bad Supreme Court Picks

John Fund in the Wall Street Journal has changed his mind about Harriet Miers. He wants questions about her asked loudly and often as it seems she's more of an enigma than he's comfortable with. Fund also points out that Republican presidents have a history of appointing people to the bench who promise to "interpret the law, not make it", and have been burned time and again:

Senate Judiciary Committee chairman Arlen Specter says he has no doubt Ms. Miers is taking "a crash course" in constitutional law. She will be primed with talking points and her compelling success story when the hearings begin. The presumption that she should be confirmed will weigh heavily on Republican senators who will be constantly reminded that the president has made dozens of good judicial picks for lower courts.

But that ignores the fact that every Republican president over the past half century has stumbled when it comes to naming nominees to the high court. Consider the record:

After leaving office, Dwight Eisenhower was asked by a reporter if he had made any mistakes as president. "Two," Ike replied. "They are both on the Supreme Court." He referred to Earl Warren and William Brennan, both of whom became liberal icons.

Richard Nixon personally assured conservatives that Harry Blackmun would vote the same way as his childhood friend, Warren Burger. Within four years, Justice Blackmun had spun Roe v. Wade out of whole constitutional cloth. Chief Justice Burger concurred in Roe, and made clear he didn't even understand what the court was deciding: "Plainly," he wrote, "the Court today rejects any claim that the Constitution requires abortions on demand."

Gerald Ford personally told members of his staff that John Paul Stevens was "a good Republican, and would vote like one." Justice Stevens has since become the leader of the court's liberal wing.

An upcoming biography of Sandra Day O'Connor by Supreme Court reporter Joan Biskupic includes correspondence from Ronald Reagan to conservative senators concerned about her scant paper trail. The message was, in effect: Trust me. She's a traditional conservative. From Roe v. Wade to racial preferences, she has proved not to be. Similarly, Paul Weyrich of the Free Congress Foundation recalls the hard sell the Reagan White House made on behalf of Anthony Kennedy in 1987, after the Senate rejected Robert Bork. "They even put his priest on the phone with us to assure us he was solid on everything," Mr. Weyrich recalls. From term limits to abortion to the juvenile death penalty to the overturning of a state referendum on gay rights, Justice Kennedy has often disappointed conservatives.

Most famously, White House chief of staff John Sununu told Pat McGuigan, an aide to Mr. Weyrich, that the appointment of David Souter in 1990 would please conservatives. "This is a home run, and the ball is still ascending. In fact, it's just about to leave earth orbit," he told Mr. McGuigan. At the press conference announcing the appointment, the elder President Bush asserted five times that Justice Souter was "committed to interpreting, not making the law." The rest is history.

With this track record, I think conservatives have a right to be concerned about court picks who do not have solid conservative credentials.