Filling Justice William 0. Douglas's Seat: President Gerald R. Ford's Appointment of Justice John Paul Stevens

David M. O'Brien

Editor's Note: This paper was prepared for the Seventh Presidential Conference at Hofstra University on "Gerald R. Ford: Restoring the Presidency, "April 6-9, 1989.

Justice Harlan Fiske Stone once likened Supreme Court appointments to a "lottery" from a pool of more or less qualified individuals. His close friend, Harvard law professor and political scientist Thomas Reed Powell, was more blunt: "[T]he selection of Supreme Court Justices is pretty much a matter of chance."[1] What they had in mind was how a President's personal politics--his political associations and friendships--determine the fate of qualified candidates for the Court. But, the pool of possible candidates also reflects the weight each President gives to (1) rewarding personal and political associates; (2) advancing his administration's ideological or policy agenda; and (3) professional considerations, the legal experience and reputation of possible nominees.[2] Democratic and Republican Presidents, moreover, tend to have different priorities in defining the pool from which they pull their nominees.[3]

President Gerald R. Ford's selection of Justice John Paul Stevens departed from the practices and priorities set by other recent Presidents, with the possible exception of Dwight D. Eisenhower. Like that Republican President he so admired, Ford had little truck with either the personal politics practiced by Democratic Presidents in naming their Justices, or the kind of White House politics calculated (occasionally incorrectly) to advance an administration's legal-policy agenda by means of judicial appointments.

Ford views it as "a mistake [for Presidents] to appoint people to the Court on ideological grounds."[4] This is so not because they may misjudge their nominees or later be disappointed by their appointees once on the Bench. Rather, Ford maintains that it is "improper" for Presidents to have their judicial appointments turn on "ideological grounds," for that denigrates the nominee and the Court. Besides placing a premium on professional considerations, Ford, like Eisenhower, relied heavily on his Attorney General in selecting a nominee whose professional reputation put him outside the pale of partisan political controversy.

Justice Stevens, though, it seems fair to say, might never have been appointed had it not been for Ford's "accidental Presidency." As Stevens recalls, he "had no political ambitions" and "didn't think in terms of getting into the kind of political activity that normally precedes going on the Bench."[5] And Ford was not in a position to claim an electoral mandate for turning the Court in a more sharply conservative direction.

Yet, the appointment of Justice Stevens shows much about Ford's Presidency--his dedication to professionalism in government and overcoming the "crisis in confidence" he inherited with the Oval Office from Nixon. Ford, as his congressional aide and later presidential counselor, Robert T. Hartmann, put it, "was the man for that season when he restored the faith of a troubled people in their constitutional government and in the honor and decency of the presidency.... To be caretaker of the Constitution is no mean glory. Jerry Ford was a far better president than he was politician."[6]

An Irony of Politics

Ironically, political circumstances conspired to give Ford the opportunity to fill the seat of liberal Justice William 0. Douglas. In 1970 as House Republican leader, Ford was involved in a drive to impeach Douglas. Five years later, after being named Vice President by President Richard Nixon and then moving into the Oval Office when Nixon resigned rather than face impeachment in August 1974, he had his only chance to fill a vacancy on the high Bench.

In the early 1970s, Republican Congressmen were embittered by the Senate's defeat of Nixon's first two nominees, Clement Haynsworth and G. Harrold Carswell, for the seat of Justice Abe Fortas. Fortas resigned in 1969, after a battle a year earlier forced his withdrawal from the nomination to be Chief Justice. He did so because of publicity that he had accepted $20,000 for serving while on the Bench, as an advisor to the Wolfson Family Foundation. In light of Fortas's resignation, a 1966 Los Angeles Times story that Douglas annually received $12,000 as a consultant to the Parvin Foundation became newsworthy again. Though his connections with the foundation had been known, allegations of impropriety were opportune for Republicans.[7]

Ford contended the activities of Fortas and Douglas stretched the American Bar Association's (ABA) canon of judicial ethics that a "judge's official conduct should be free from impropriety and the appearance of impropriety." What really disturbed him and others was Douglas's life-style and judicial philosophy. Ford, as Hartmann recalls, "disapproved of Douglas the way a Grand Rapids housewife would deplore the behavior of certain movie stars. The old man [Douglas] took too many wives and he seemed to encourage any new fad in youthful rebellion."[8] Douglas joined a majority on the Warren Court in extending First Amendment protection to ostensibly obscene materials. And his publishing agent permitted Ralph Ginsberg, convicted for publishing obscene and libelous magazines, to print an excerpt from one of Douglas's books in Avant Grade. When Douglas participated in the Court's decision (denying) review of Ginsberg's conviction, Ford alleged a conflict of interest.

While Representatives Harold R. Gross of Iowa and John R. Rarick of Louisiana publicly called for Douglas's resignation, Ford and Hartmann investigated the Justice's off-the-Bench activities. Ford, however, might never have taken a lead in an impeachment drive had House Republicans not forced him to do so. Indeed, he thought a "motion to impeach [Douglas] would widen the gulf between conservatives, moderates and liberals;" as House leader he "had a duty to try to prevent that from happening."[9]

Ford was prodded into doing something when an excerpt of Douglas's book Points of Rebellion appeared in Evergreen, a magazine identified with left-wing radicals. But, when he finally went to the floor of the House to call for a full investigation, Representative Andrew Jacobs, Jr., a Democrat from Indiana, beat him to the punch by introducing an impeachment resolution. Under House rules, the matter immediately went to the Judiciary Committee, which was controlled by Democrats.

When the committee found no grounds for impeachment, Ford called it a "travesty." The momentum for impeachment, however, had declined by the time of the committee's report. The Senate had confirmed Justice Harry Blackmun, Nixon's third nominee for Fortas's seat. Douglas's association with the Parvin Foundation no longer appeared extraordinary in view of revelations during Blackmun's confirmation hearings that, as a federal appellate judge, he was associated with the Mayo Clinic and the Kahler Corporation Foundation, among others, as well as a trustee of (Chief Justice Warren Burger's alma mater) the William Mitchell College of Law.

Ford continued to maintain that "Douglas's extensive extra judicial earnings and activities have impaired his usefulness and clouded his contribution to the United States Supreme Court."[10] That, in turn, led to attacks in the press on him forming a "partisan witch hunt." In retrospect, Ford claims what he "did at the time may have been politically ill advised, but it was not irresponsible."[11]

Four years after attacking Douglas, Ford then had the chance to fill the seat the Justice occupied for more than 36 years. The decision to retire was not unexpected, though painfully difficult for Douglas. It was not that Ford would appoint his successor, or even that Nixon's appointees were moving the Court in directions that troubled the Justice. On December 31, 1974, after arriving in Nassau for a winter vacation, Douglas suffered a stroke. He was hospitalized and could not return to the Court to hear oral arguments until March 24, 1975. Frail, confined to a wheel chair, and despite deteriorating health, he persisted even after doctors told him in October that he would not walk again. Finally, on November 1, following a meeting with Fortas and Clark Clifford, the strong-willed but enfeebled 76 year-old Justice gave in to the inevitable.

On the morning of November 12, Justice Douglas called Deputy Attorney General Harold Tyler to tell him that he intended to resign and that his wife, Cathy, would deliver his letter of resignation later that day. Douglas never forgot or forgave Ford's attack on him, and could not bring himself to give his letter directly to the President. At 3:15, Cathy delivered Douglas’s letter to Tyler at the Department of Justice.[12] "It was my hope," Douglas explained in his letter, "that I would be able to continue to participate in the work of the Supreme Court." But, "it would be inadvisable for me to attempt to carry on the duties required of a member of the Court. I have been bothered with incessant and demanding pain which depletes my energy to the extent that I have been unable to shoulder my full share of the burden of the Court's work."

Ford immediately accepted the resignation with a letter commending Douglas's "contributions to the law both as a scholar and jurist."[14] That afternoon he met with Attorney General Edward Levi and presidential counselor Philip Buchen to discuss potential successors. The next day, Ford told reporters he would make his nomination "as soon as I reasonably can, because it is widely recognized that the workload of the Court and the extremely important issues to be decided require, as soon as possible, a full Court of nine Justices. With only eight Justices," he added, "there is too much risk of an equal 4 to 4 division of opinion in critical cases." As to his nominee's qualifications, Ford said:[15]

I shall take very seriously the need to have a person highly respected for professional quality, for intellectual capacity, and for integrity. Also, I am looking for an energetic person and preferably one of middle age who can be expected to contribute effectively for a substantial period of years to the important work of the Court.

"Few appointments a President makes," Ford realized, "can have as much impact on the future of the country as those to the Supreme Court."[16]

Towards a Restoration of Public Confidence and Professionalism

Even before meeting with Levi and Buchen to discuss potential nominees, Ford laid the foundation for a process and an understanding which ultimately determined the selection of his nominee. Whether or not, as Buchen later claimed, Ford was "weak as an administrator and a planner,"[17] there is no denying his commitment to restoring public confidence in the post-Watergate Presidency by returning professionals to government. "[O]ur long national nightmare is over," he proclaimed on becoming the 38th President: "Our Constitution works. Our great Republic is a government of laws and not of men."

Ford's commitment to the restoration of public confidence and professionalism in government was no more evident than in the Department of Justice (DOJ), notably with the appointment of Edward Levi as Attorney General. His determination and virtually complete reliance on Levi, more than any other factor, accounts for his final choice in filling the vacancy on the Court.

"[N]owhere did Watergate leave more lasting scars than at the Department of Justice," Ford recalls. "In less than three years, it had had three Attorneys General--Richard Kleindienst, Elliot Richardson and William Saxbe."[18] Watergate "had a devastating impact on the record and morale of the Department of Justice. Allegations of partisan politics were rampant. Relations with Congress were at a low ebb. The Federal Bureau of Investigation had gone through a disturbing era. United States intelligence and counterintelligence activities were being seriously challenged by Congress, the news media, and the public."[19]

Ford needed to make his own imprint on the Justice Department. Still, he did not initially dismiss William Saxbe who became Attorney General in January, 1974, during the Watergate crisis. Less than a year later, however, Ford offered Saxbe the Ambassadorship to India after hearing he wanted the assignment. This enabled Ford to distinguish his Administration's approach to judicial selection and legal policy.

Indicative of Ford's commitment to restoring public confidence in government was his judgment that the "new Attorney General..,. had to be someone of unquestioned integrity and impeccable legal abilities and background and ought to come from outside the traditional political arena."[20] Nixon had "heavily politicized" the department and Ford was concerned that Presidents typically chose their closest advisors or campaign managers for the government's highest legal post. He wanted "someone nonpolitical."[21] His chief of staff, Donald Rumsfeld, and Buchen agreed. Ford "needed an Attorney General who would be different, someone highly respected in the legal profession and uninhibited by partisanship."[22] Rumsfeld suggested Levi, who was president of the University of Chicago and former dean of its law school. When Ford met him on December 5, 1974, he was impressed and immediately offered the position of Attorney General.

No less important, Ford delegated and relied on the judgment of his new Attorney General. "One of the most critically important responsibilities" assigned him, Ford recalls, was "to assist in choosing a nominee to the United States Supreme Court."[23] But, there was more to their relationship and, again, it reflects a shared commitment to professionalism in government.

Levi brought in his own team and set the tone in the department. Harold Tyler, a federal district court judge, was persuaded to serve as Deputy Attorney General. To head the civil division, Levi recruited the dean of Brigham Young University Law School, Rex Lee, who later served as Ronald Reagan's Solicitor General. For the criminal division, Levi elevated a respected United States attorney, Richard L. Thornburgh, who was brought back as Attorney General at the end of Reagan's second term and continued on during George Bush's administration.

Professional considerations governed Levi's view of federal judgeships as well. Like other Presidents, Ford delegated primary responsibility for filling vacancies in the lower federal courts to his Attorney General.[24] Initially, Levi personally handled these nominations. But, he soon found he was too busy with other matters and that most were routine. Thereafter, the task was assigned to Deputy Attorney General Tyler, who was assisted by two career attorneys. Tyler worked to rebuild relations with the ABA, which were badly damaged during the Nixon years. He had a "virtually free hand" and conferred with Levi only after conducting his own investigation of potential nominees.[25]

Notably, except for the Supreme Court appointment, Levi and Tyler had few dealings with White House staff in recommending nominees for the 66 lower court judgeships filled by Ford. They enjoyed a degree of independence and freedom from White House intervention and supervision that contrasts sharply with the operation of other Administrations.[26] Rather than imposing ideological considerations or its own legal-policy goals, Ford's DOJ sought high-caliber nominees and cooperation from the Senate in securing their confirmation.

The process and goals of selecting federal judges during Ford's Presidency, to be sure, failed to infuse a sharp conservative judicial philosophy into the federal bench. In the words of Stephen Markman, the Assistant Attorney General in charge of judicial recruitment during President Ronald Reagan's second term: "the Ford Administration did not make significant changes" and "the weakness of the Ford Administration may be seen in the statistic that a record 21 percent of its district court appointments went to members of the opposing party."[27]

Yet, such criticism reflects both how the priorities of Administrations differ and the political circumstances constraining each Presidency. All Presidents give more or less weight to three factors in their judicial selection: (1) the professionalism, or legal experience and reputation, of potential nominees; (2) rewarding their long-time supporters and party-faithful; and (3) pursuing their ideological or policy agenda through judicial appointments. Unlike some other Presidents, Ford placed a premium on the professional qualifications of nominees, to the exclusion of ideological considerations and occasionally even partisan politics. Like Eisenhower, Ford also delegated major responsibility to his Attorney General, who in turn worked with the ABA in evaluating potential nominees' professional qualifications.

The decision to consult with the ABA on filling Douglas's seat was itself politically symbolic; it signified that the professional considerations would be taken seriously. Nixon put an end to the practice of consulting with the ABA on nominees for the Court in 1971. The ABA's Standing Committee on Federal Judiciary had screened prospective nominees for the Court since Eisenhower's selection of Justice William J. Brennan, Jr. in 1956, rating them as "qualified" or "unqualified." But, Senate criticism and rejection of the nominations of Haynsworth and Carswell--who the ABA ranked as "highly qualified" and "qualified," respectively--infuriated Nixon and prompted the ABA to change its system of rating nominees. (Supreme Court nominees are now rated "well qualified," "qualified," or "not qualified.") After another round of unfavorable press over possible candidates for the seats of retired Justices John Harlan and Hugo Black in 1971, Attorney General John Mitchell refused to submit any further names to the ABA. The committee was left on its own in investigating Nixon's last two appointees, Justices Lewis F. Powell and William H. Rehnquist.

With Ford's appointee to the Court, the ABA re-established its informal role in evaluating candidates before the President's final selection. Whatever the merits of the ABA's rankings, they serve to legitimate the professional competence of nominees.[28] And the renewal of the ABA's role underscored Ford's concern with restoring professionalism and public confidence in government.

Admittedly, even if Ford wanted to make an ideological appointment, he was in a poor position to do so. As an "accidental President," he had no pretense of claiming an electoral mandate and faced Democratic majorities in Congress. With the prospect of running for election in 1976, he faced competing interests within the White House and the watchful eye of Democratic Senators, who considered Douglas's seat crucial to the Court's future direction.

Neither Ford nor Levi entertained making an ideological appointment, however. Ford was a moderate or "traditional" conservative, believing in judicial self restraint. "The Court," in Ford's view, "should not be benign nor a legislative court, but in between those extremes... moderate in between those lines."[29] "Under Chief Justice Warren," he felt, "the Court had begun legislating by judicial decree instead of simply interpreting the law."[30] Still, Ford was not inclined toward naming hard-line conservatives.

Before Douglas's resignation, Ford told Levi and Buchen that his top priority in selecting a candidate for the Court was "competency" and "previous court experience." Next, the nominee's "[p]ersonal integrity" and "history of independent thought." Legal and judicial experience ranked higher than legislative and political experience, which stood above (and virtually eliminated those with only) academic records as law professors. A final consideration was age; any nominee "should be 50 plus or minus."[31]

Lobbying and Cross-cutting Pressures

As other Presidents, Ford faced conflicting pressures from within and without the White House. Differences between holdovers from the Nixon era and Ford's appointees were evident. As Richard Cheney, who served in Nixon's first term and returned to his Administration before becoming an assistant to Ford, observed:[32]

The worst conflicts in terms of personal relationships were inside the White House. There is no question about it. We had conflicts between the old Nixon carry-overs, and the new Ford staffers. The Nixon hands who were there when President Ford arrived knew how the White House ought to operate. Most of them were absolutely first-rate people untainted by Watergate in any shape or form. The old Ford people had been with President Ford either when he was a congressman on the Hill or since he joined the administration as vice president.

When the vacancy on the Court opened, Ford's Presidency split three ways over the appointment of (1) a woman, (2) a hard-line conservative, or (3) a moderate, politically non-controversial lower court judge. In addition, some 30 Congressmen wrote the President about their preferred candidates, as did representatives of special-interest groups, Republican lawyers, judges, and other individuals interested in promoting their own candidacy.[33]

White House staff quickly compiled a list of possible nominees. Among the appellate court judges later given consideration were Third Circuit Court of Appeals Judge Arlin Adams, endorsed by Senator Hugh Scott and others, along with seventh circuit Judge Philip Tone. Others mentioned, but not given more consideration, included: Judge Charles Clark of the fifth circuit, who was recommended by Senator James 0. Eastland. Senator Strom Thurmond suggested federal district court judges Robert Chapman and Charles E. Simmons, along with Judge Emery Widener of the fourth circuit. The Alabama Bar Association put up the name of Judge Frank M. Johnson, Jr., who James E. "Jimmy" Carter elevated to the appellate bench. Ninth Circuit Court of Appeals Judge Alfred Goodwin was supported by Senator Mark 0. Hatfield, while Representative John Byrnes drew attention to eighth circuit Judge Smith Henley. Roger Blough mentioned Judge Irving R. Kaufman of the Second Circuit Court of Appeals.

The prominent attorneys included former Solicitor General Robert H. Bork; presidential counselor Philip Buchen; former Nixon legal counsel Leonard Garment; and Attorney General Levi. In addition, Deputy Attorney General Tyler was mentioned, along with Caspar Weinberger and Congressman Charles Wiggins. The National Women's Political Caucus and Pat Lindh proposed a rather diverse group of women attorneys: Bella Abzug, Yvonne B. Burke, Martha Griffiths, Margaret Heckler, Carla Hills, Elizabeth Holtzman, Barbara Jordon, Patsy Mink, Betty Southard Murphy, and Pat Schroeder.[34]

Ford confronted the most direct pressure for nominating a woman from his wife, Betty, who publicly favored Housing and Urban Development (HUD) Secretary Carla Hills.[35] Jill Ruckelshaus, the presiding officer of the National Commission on the Observance of International Women's Year,[36] Audrey Rowe, chair of the National Women's Political Caucus, and the National Federation of Business and Professional Women's Clubs strongly urged naming a woman.[37]

Within the Administration, Pat Lindh compiled the resumes of several women judges and law professors. Among the top were D.C. Superior Court Judges Sylvia Bacon and Margaret Haywood; D.C. Court of Appeals Judge Julia Cooper; Ninth Circuit Court of Appeals Judge Shirley Hufstedler; federal district judge Cornelia Kennedy; and Susie Sharp of the Supreme Court of North Carolina. Several law professors, Ruth Bader Ginsberg, Herma Hill Kay and Dorothy Nelson, were on Lindh's list as well as that of the National Women's Political Caucus. Other judges included Norma Holloway Johnson, Florence Kelley, Elizabeth Kovachevich, Constance Baker Motley, and Sandra Day O'Connor (who Reagan appointed to the Court in 1981), along with professors Soia Mentschifoff, Ellen Peters, Harriet Rabb, and Jean Kettleson.

Some women rumored to be in consideration invited rebellion within the Republican Party. The GOP Steering Committee strongly opposed Hufstedler, among others. For the committee, Senator James A. McClure wrote Ford about Hufstedler:[38]

Her opinions from the bench lead us to believe that she is precisely the kind of judicial activist which has characterized recent difficulties with judicial decisions. We believe her appointment would tilt the Court away from the prudent direction it has been taking under the Chief Justiceship of Warren Burger.

Attached to McClure's letter were the names of "eight persons whose records would indicate the kind of judicial and judicious temperament [sic] which we believe important to balance the Supreme Court." At the top was Robert H. Bork.

A wing of the White House staff held out hope for a woman's nomination even though, within days of Douglas's resignation, Levi circulated a list of the candidates under consideration. It included no women. In a "Memorandum For The President," Lindh pointed out that "two or three of the candidates on the Attorney General's list are opposed to the Equal Rights Amendment, which really puts us in double jeopardy." She reminded Ford of his "many statements concerning the status of women in our society," before imploring that "all else being equal, your nomination of a properly qualified woman for the Supreme Court would be appropriate and just."[39] Appointment of a woman, others argued, might also help Ford in his bid for the 1976 presidential election. In retrospect, Ford agrees, "a woman might have helped, but who can say.[40]

Notwithstanding the publicity and efforts of some White House staffers, no woman appeared seriously in the running. This is so despite Ford's recalling that he told Levi to "[s]urvey the field and [not] exclude women from your list,"[41] as well as the names of two women--Judge Kennedy and HUD Secretary Hills--at the bottom of Ford's "short working list" of potential nominees.[42]

Another faction within the Presidency and the Republican Party pressed for "a more ideological appointment."[43] For one, presidential advisor and former head of the American Enterprise Institute (AEI), William Baroody, Jr., advised naming Robert Bork, a leading conservative scholar, AEI associate, and former Yale law school professor.[44] "He is young and is a strict Constructionist and," wrote Arizona's Senator Barry Goldwater in a letter to the President, "would give continuity to the kind of Court that you want for at least twenty-five years."[45]

Bork would have proven as (maybe more) controversial as he was in 1987, when his nomination by Reagan went down in the Senate by the widest margin (58 to 42) of any Supreme Court nominee.[46] In 1975, he was identified with the disgraced Nixon Administration more than with the advocacy of a 'jurisprudence of original intention." Barely two years earlier, Archibald Cox, the special prosecutor assigned to investigate the Watergate break-in and cover-up, had asked Nixon to turn over White House tapes. The President refused but eventually offered to provide summaries of relevant conversations. When Cox found the deal unacceptable, Nixon ordered Attorney General Elliot Richardson to fire him. Instead, Richardson resigned. So did the Deputy Attorney General, William Ruckelshaus. Finally, Solicitor General Bork became Acting Attorney General, and he fired Cox. The "Saturday Night Massacre" unleashed a wave of public anger that within days forced Nixon to relinquish some of the incriminating tapes.

Bork's confirmation would probably have been defeated and a bitter battle further hurt Ford's chances in the 1976 election. The Democratic-controlled Senate was concerned about any nominee following Nixon's appointments. With four Nixon appointees, Douglas's seat was considered "pivotal;" his successor certain to tip the balance on the Court in more conservative directions. Massachusetts' Democratic Senator Edward Kennedy held subcommittee hearings on the need for "balance" on the Court, and pushed for a Senate Judiciary Committee "advice and consent" procedure before Ford named his nominee. Max Friedersdorf, a legislative liaison, alerted the President. Nebraska's Senator Roman Hruska and other Republicans finally blocked Kennedy's efforts on November 21.[47] This underscored for Ford the importance of quickly naming his nominee (before opposition gathered momentum) and steering clear of anyone controversial.

Even if a confirmation fight over Bork could have been won, Ford was not predisposed towards naming him. As a moderate Republican, Ford did not "view the philosophical grounding of [judicial] candidates to be as important" as would those in the Reagan Administration.[48] His dedication to restoring the Presidency's reputation bode ill for a candidate who would revive the Watergate controversy. In short Bork's reputation and record did not match that of others already on the federal bench or Ford's priorities, and his political liabilities would dearly cost Ford the Presidency.

From the outset, Ford was determined to name a respected moderately conservative jurist in order to avoid the kind of political conflict that ensnarled Nixon's two ill-fated nominees. That view was shared by Levi and others in the Administration, at least those not bent on making a politically symbolic statement through the appointment of either a woman or a hard-line conservative. Roger Blough, for one, advised naming "an individual with a middle of the road" philosophy rather than "a more conservative one" on the ground "that if the Court was perceived as being unduly conservative then respect for it as an institution would be diminished."[49] Besides, Ford could claim no electoral mandate for changing the Court.

John Hart Ely, unwittingly, represented those in the Administration who thought the appointment should go to a moderate conservative. Ely, who clerked for Chief Justice Earl Warren and was serving as general counsel in the Office of the Secretary of Transportation, cautioned in a letter to the President that,

The appointment of an extreme conservative to Justice Douglas' seat would throw the Court rather seriously out of ideological balance. The Court's importance in our society has been attributable in large measure to its position as an instrument of continuity--a position that would be jeopardized by the appointment of an extreme conservative to the Douglas seat--and also to the fact that although it has never had significant independent power has nonetheless kept at least the pressure of persuasion on the political branches respecting such values as racial equality and free expression.. . - Moreover, a little arithmetic will demonstrate that such an appointment would effectively eliminate the Supreme Court as a meaningful independent force for civil liberties for quite a long time to come.

Nixon, he added, "did do great harm to two of the three branches of government. The obvious harm was to the office of the Presidency, harm you have understood and done so much to repair. But harm was done to the Supreme Court as well, by making it a campaign issue and engaging in an openly, even cynically political selection process." He concluded with a statement capturing rather well the position taken by Ford and others that,

the process of selection be one that is structured--and, at least as important, that it be perceived by the public--as not primarily political, that it be understood as different from the way one picks a running mate (or even the General Counsel of a cabinet department). Should the Court overtime come to be viewed as just an other political branch, America will have lost, and irretrievably lost, something that is entirely unique and extremely valuable.[50]

There were thus conflicting views and crosscutting pressures focusing on Ford's selection for the Court. Others outside the Administration sought influence as well. For instance, widely-respected appellate court Judge Henry J. Friendly wrote the President urging Levi's nomination.[51]

Levi, it bears noting, was not without his supporters. Illinois Senator Charles Percy initially proposed his appointment in a telephone conversation with Ford on November 14.[52] That day Chicago's Mayor Richard Daley also left word at the White House that he endorsed him.[53] Before the vacancy occurred, however, Levi and the President agreed it would appear improper for Ford to name his Attorney General to the Court, in light of the circumstances of their holding office. When Douglas resigned, Levi also told Ford that it would be unwise to nominate anyone from within his Administration.[54] Their efforts to restore confidence in government would also have probably been undercut.

Nor was Judge Friendly alone in suggesting possible nominees.[55] Justice Lewis F. Powell mentioned to Levi and others the possibility of Phil C. Neal, a former dean of the University of Chicago Law School.

Two days before Douglas notified the President of his retirement, Chief Justice Burger also wrote Ford a letter, hand-delivered to the White House by Mark Cannon, the Administrative Assistant to the Chief Justice. "Against the possibility that a vacancy may occur on the Court," Burger suggested "certain factors that deserve consideration."[56]

1. Rarely have the geographical factors been as neutral as at the present. As you know, the two youngest Justices are from the West (White and Rehnquist); there are three from the Midwest (Burger, Stewart, Blackmun); one from a border state, Maryland (Marshall); one from the Northeast (Brennan); and one from the South (Powell).

(2) The average age of the nine Justices is now 65 years.

(3) For more than ten months past we have been functionally only a Court of eight, and this has placed us under substantial handicaps.

(4) Since I took office in June 1969, the Court has been functionally eight Justices for more than two years.

(5) All indications are that our work will continue to increase both in the volume and in the complexity and novelty of issues; a number of crucial cases have been set for reargument due to the absence of Justice Douglas last year. To resolve them with a Court of eight Justices is highly undesirable, for many reasons.

Burger impressed on Ford that certain considerations go into making his selection: "(a) It must be a nominee of such known and obvious professional quality, experience and integrity that valid opposition will not be possible. (b) Given the present difficult condition of the Court's work--a condition that has prevailed for more than 10 months--a nomination should be made ....... before rival candidacies develop that could engender divisiveness and delay confirmation. We need nine Justices without delay," he emphasized, adding,

A nominee with substantial judicial experience would have several marked advantages; the adjustment to the work of the Court would be expedited because of familiarity with the enormous amount of "new law" in recent decades; insulation from controversy and partisanship by reason of judicial service is also likely an advantage (as it was to Justice Blackmun and me). This does not rule out a non-judge but it emphasizes that a general practitioner, no matter of what legal capacity, has very likely had little occasion to keep up with the great volume and complexity in the evolution in criminal law and public law matters that now compose the bulk of the Court's work.

Concluding, the Chief Justice reiterated that timing was "a critical factor" and the nominee's age "crucial." While declining to propose particular candidates, Burger offered "to pursue these points in more depth with you."[57]

Delegation and Dedication to Professionalism

In the 16 days following Douglas's resignation to the announcement of his successor (from November 12 to 28), press reports reinforced the perceived split within Ford's Presidency over appointing a woman, or a hard-line or moderate conservative. But, the politics and infighting among White House staff had no impact on the actual selection process. During this period Levi quietly and independently pursued his investigation of the principal candidates.

Soon after becoming Attorney General, Levi was asked by Ford to think about possible candidates for the Court. And two days before Douglas announced his retirement, Levi sent the President a list of those he thought "worthy of consideration," along with brief appraisals of their qualifications.

Levi's list was the basis of discussion with Ford on the afternoon of November 12. Notably, only six of the 18 also appeared on the list compiled by Cheney from White House staff and others seeking to influence the Administration. None were women, as earlier noted. Those mentioned by both Levi and Cheney were Judges Arlin M. Adams, Alfred T. Goodwin, and William H. Webster; Bork; Congressman Charles E. Wiggins; and Senator Robert P. Griffin. Levi suggested other appellate judges, Paul H. Roney, John Paul Stevens, J. Clifford Wallace, and Malcolm Wilkey. Also listed were several leading academic and practicing lawyers: Philip Areeda, a former counsel to President Nixon; Bennett Boskey, a respected Washington, D.C. lawyer; Philip Kurland, a conservative University of Chicago Law School professor, who had clerked for Justice Felix Frankfurter; Vincent Lee McKusick and James H. Wilson, Jr., two prominent attorneys, respectively, in Maine and Georgia; Dallin H. Oaks, a former University of Chicago professor and president of Brigham Young University; and Antonin Scalia, who was Assistant Attorney General for the Office of Legal Counsel and later returned with Levi to the University of Chicago, before Reagan named him to the appellate bench in 1982 and to the Court in 1986.[58]

Since Ford was interested in a nominee in his fifties, rather than someone older and less likely to remain on the Court for long, Levi indicated some outstanding judges, such as Edward Gignoux (age 59) and Carl McGowan (age 64), were excluded.

Attached to Levi's memorandum were short biographies of those he deemed merited serious consideration: Adams, Bork, Goodwin, McKusick, Oaks, Roney, Stevens, Wallace, and Webster. He merely gave the legal backgrounds of Oaks, McKusick, Goodwin, and Roney without indicating his view of their qualifications. Webster, he noted, "has proven to be a very competent judge--energetic, careful, and intelligent." Similarly, Levi thought, "Judge Wallace is an able, intelligent judge and is markedly conservative, especially in criminal law matters." He had somewhat more to say about the remaining three, Adams, Bork and Stevens.

Levi commented least about Bork, who graduated from the University of Chicago Law School, before entering private practice and later teaching antitrust law at Yale Law School. Bork "was generally known in the profession as one of the foremost conservative critics of the prevalent interpretation and enforcement of the antitrust laws." But his stands on matters of constitutional law were "less well known, except for his prominent role, in the first term of President Nixon's administration, as one of the draftsmen and proponents of legislation" to eliminate "busing as a judicial remedy for segregated schools." As Solicitor General, Bork enjoyed "the highest reputation" for his "ability and integrity." Missing from Levi's discussion was Bork's well-known role in the Saturday Night Massacre. "If Mr. Bork was appointed to the Court," he concluded, "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."[59]

Judges Adams and Stevens received more attention and praise. Since Adams' appointment to the third circuit bench in 1969, Levi found he had

proven himself an able, highly energetic judge, generally conservative in judicial philosophy. His positions on substantive constitutional issues are generally conservative. His opinions demonstrate considerable energy, broad scope of interest and an underlying judicial philosophy, which includes a concern with limiting the role of the federal courts and of clarifying and to some extent limiting the right of standing to sue."

But, Levi ended with mixed praise:

His opinions have considerable flair and reach, which gives them interest and can suggest an influential member of the Court, but revealing a certain weakness, not so much in analytical skill–which he has--but in being willing to sometimes by-pass or go beyond the most careful analysis.[60]

Levi reserved his highest praise for Stevens. They, of course, knew each other from Chicago and the University of Chicago. Stevens was younger (born on April 20, 1920), but, as Levi, he grew up in a family in the Hyde Park community near the university; his father, an affluent businessman, had passed the Illinois bar but never practiced law. They were not, however, childhood friends, as were Nixon-appointees Warren Burger and Harry Blackmun. Instead, their relationship developed from professional interests and social contacts in the Chicago bar association.

As an undergraduate at the University of Chicago, Stevens majored in English, made Phi Beta Kappa, and planned "to be an English teacher." World War II intervened and, after graduating, he enlisted in the Navy in 1942, serving in the Pacific until 1945. Towards the end of the war, his older brother, a lawyer, wrote him "at great length about some of the psychological rewards of practicing law;" it "had a real impact on [his] thinking." Pro bono work did not interest him, rather "the challenges and opportunities to make some kind of contribution to what goes on in the world." In addition, he frankly wanted to take advantage of GI Bill of Rights and government loans to pursue his studies.[61]

After the war, Stevens entered Northwestern University Law School in an accelerated two-year program. There, he enjoyed the "competitive aspect" of law school, especially the fact that "at the time there were class ranks. It was kind of a challenge to do as well as you could in law school." He graduated first in his class in 1947, and then had the chance to go to the Supreme Court as a law clerk.

Stevens's clerkship was a lucky coincidence as much as a reflection of his abilities. As it happened, in the summer of 1947 Congress passed a statute authorizing each Justice to hire a second law clerk. Justice Wiley Rutledge contacted Professors Willard Wirtz and Willard H. Pedrick at Northwestern about graduates who might serve as clerks. And, Stevens recalls, he then went to the Court on the flip of a coin:

They urged him to take a Northwestern graduate and they also urged the Chief Justice [Fred Vinson, who made a practice of taking Northwestern graduates as his clerks] to take one [the following year]. There were two of us who were substantially equally well qualified, they thought, and they proposed that we flip a coin for the position. And I won the flip so that I got the first choice which was to go that year with Justice Rutledge, and the next year Art Sedar went with the Chief Justice because he lost the flip and had to wait a year.

During his clerkship, Stevens came to greatly admire Rutledge, a liberal jurist and F.D.R.'s last appointee to the Court. Rutledge's judgment impressed him, whereas Justice Felix Frankfurter though "brilliant" appeared "too technical" in deciding cases. He also remembers hearing Thurgood Marshall argue cases for the National Association for the Advancement of Colored People (NAACP) before the Court, and reading memos written by Byron White, who clerked a year earlier for Chief Justice Fred Vinson (and who Stevens had met in the Pacific). Stevens, though, "never really" thought he would eventually return to the Court. He "had no political ambitions or objectives and," he explains, "didn't think in terms of getting into the kind of political activity that normally precedes going on the bench."[62]

After clerking at the Court, Stevens returned to Chicago and entered private legal practice, specializing in antitrust and commercial law litigation. He joined the firm of Poppenhausen, Johnston, Thompson and Raymond in 1948. Three years later, he left to serve as Associate Counsel to the Subcommittee on the Study of Monopoly Power of the House Committee on the Judiciary. He then returned to his Chicago firm for six months, before leaving to form another firm, Rothschild, Stevens, and Barry.

Besides his legal practice, Stevens taught part time, first at Northwestern University Law School (in 1952-1953) and then at the University of Chicago Law School (in 1954-1956). At Chicago, Dean Levi asked him to co-teach his antitrust course with Aaron Director, an economist who had a major influence on Bork's work on antitrust.[63] Stevens wrote a number of antitrust articles as well as served as a member of Attorney General Herbert Brownell's National Committee to Study the Antitrust Laws in 1953-1955. He continued practicing law until Nixon, at the suggestion of Senator Percy, appointed him to the Seventh Circuit Court of Appeals in 1970.

Stevens' five years on the appellate bench was the focus of Levi's report. In Levi's words:[64]

Judge Stevens has proved a judge of the first rank; highly intelligent, careful and energetic. He is generally a moderate conservative in his approach to judicial problems, and in cases involving the attempted expansion of constitutional rights and remedies. He has shown particular ability in antitrust and other matters of federal economic regulation and would add strength to the Court in this area. Overall he is a superb, careful craftsman. His opinions lack the verve and scope of Judge Adams' but are more to the point and reflect more discipline and self restraint.

Subsequently, during Stevens' confirmation hearings, Levi offered more lavish praise, characterizing the judge's appellate court opinions as "gems of perfection" and a "joy to read."[65]

Based on Levi's report and November 12 meeting with Ford, an initial cut in the pool of candidates was made. This enabled Levi to immediately ask the Federal Bureau of Investigation (FBI) and the ABA to begin examining the backgrounds of their top candidates. By 6:00 that evening, Levi had requested Lawrence Walsh to have the ABA Standing Committee on Federal Judiciary begin its preliminary investigations of the backgrounds of the eleven on Levi's short list: Adams, Bork, Goodwin, Griffin, McKusick, Oaks, Roney, Stevens, Wallace, Webster and Wiggins.

Levi also asked that the ABA report back with its "informal" evaluation of each within five days.[66] In the meantime, he further studied "the decisions of the judges, read the writing of the academicians, and analyze[d] the performance of those in private practice."[67]

Under the auspices of the ABA, Levi received help from leading law professors in evaluating the opinions of appellate court judges being seriously considered. Harvard Law School Professor Lawrence Tribe and five other faculty members, for example, analyzed the 200 opinions Stevens had written on the appellate bench.[68]

Old Friends and Political Ambitions

While Levi carried the ball in evaluating the top candidates' qualifications, Ford confronted the lobbying efforts of White House staff and others. In particular, Ford had to deal with an old friend, home state Republican Senator Robert Griffin. Nor was the Senator without his backers. Michigan's Governor William G. Milliken, among others, telephoned the President to endorse his nomination and underscore that the Senator "wants" the appointment.[69]

Presidents have often appointed their political associates and friends to the Court. But, the circumstances of Ford's Presidency virtually precluded Griffin from being seriously considered. His nomination would ring of "cronyism"[70]--a charge Republicans had leveled against Lyndon Johnson and Justice Fortas. Besides, Ford was devoted to restoring confidence in government and preferred elevating a sitting appellate court judge with an established judicial record.

Ford thus had to handle Griffin, who relentlessly pursued the nomination. After several chats with Ford and four days before the nomination would be publicly known, Griffin remained insistent, sending the President a Washington Star article entitled "Will the Court swing into Retrogression?" It noted that "half of the 100 men who have so far served have not had previous judicial experience," including Justices Hughes, Brandeis, Black, Frankfurter and Warren (whose names Griffin underlined). In his files, Cheney noted Griffin "would have been an excellent choice for the Court. However, Bob Griffin is an able and important leader in the Senate, and I think he is performing a very valuable service there."[71] This, though, was a rationalization for a friend and posterity.

The President and his advisors tried dissuading Griffin by pointing up a technical obstacle. Article I, Section 6, clause 2, disqualifies any member of Congress for appointment to an office in the federal government for which the Congressman voted to create or increase the salary thereof during the term for which the Congressman was elected. Griffin had voted for a 5 percent salary increase for all federal employees, including federal judges, and thus might be considered constitutionally disqualified for an appointment to the Court.[72]

Rather than being deterred, Griffin was determined to find a way around this barrier. Within days of Douglas's resignation, he had sent the White House proposed language for legislation that might eliminate this obstacle. It provided:[73]

Notwithstanding any other provision of law, if a Member of Congress resigns to accept appointment to any other civil office under the authority of the United States, the compensation and emoluments available during the remainder of the time for which he was elected shall not exceed the level of compensation and emoluments which would have been available for service in such office at the beginning of the time for which he was elected.

Although nothing came of the proposal, Griffin continued his campaign for the Court. As the President was reaching his final decision on Sunday, November 23, Griffin telephoned him twice.[74] By this time Levi had already made his "final recommendation," Ford recalls, "that I nominate one of two outstanding federal judges, whose major opinions he sent to me for my own analysis. I took this material to Camp David for the weekend, and on my return, we had our final Oval Office review."[75] But, Ford's conversations with Griffin that weekend were apparently unconvincing, or the Senator was simply unwilling to accept fate.

On November24, Griffin wrote Ford, again, explaining why the Article I restriction should not apply to him. This time revealing frustration, he pointed out that a strict construction of that constitutional provision would forbid "a President [from appointing] a Member of Congress to fill the office of the Vice President [as Nixon had done with Ford] under the Twenty-fifth Amendment if Congress happened to have increased the salary of the Vice President during the term for which the particular Congressman or Senator was elected."[76]

"A Close Call"

During the weekend of November22 and 23 at Camp David, Ford basically settled on naming either Judge Adams or Stevens. "It was a close call," he remembers, "for both were superb jurists."[77] Both received the ABA's highest rating. Ford further discussed his choice with Levi and Buchen on Saturday. He asked for information about some of their views, in particular Stevens' opinions on the environment, which Buchen analyzed in a memorandum.[78] Buchen also told Ford that "an older senior federal district judge [felt] that Stevens might be soft on crime cases." But he discounted that, noting Stevens' opinions did "not substantiate this." The FBI and ABA reports on "Webster, Clark and Wallace" were still forthcoming, though Ford was already focusing on Adams and Stevens.[79]

Ford still had not met his nominee, however. That was arranged for Monday, before Thanksgiving, at a White House dinner for federal judges. There, Ford and Stevens casually chatted. After dinner, the President conferred privately with Chief Justice Burger and Levi.[80]

By the Monday dinner, Stevens knew he was "~ the running." His first indication came a week earlier. "First of all," he says,

shortly after Justice Douglas resigned, Bob Specher, who [was] a judge on the seventh circuit called me up, when I walked in the office one morning and said he'd received a call from the ABA committee on judicial candidates inquiring about me. He inferred that I was being considered for the appointment. That was the first word I had, and then there were newspaper stories that indicated there were a certain number of people on a list that were seriously being considered.

Four or five days later, the FBI called and told him that he was "the subject of an investigation and that gave [him] some notice that there was this possibility. But," he emphasizes, "others were also investigated so it was by no means certain."[81]

When arriving at his decision, Ford ranked in order those considered for the nomination.[82] His final choice was made from three Nixon-appointed appellate judges, Adams, Stevens and Tone. Attorney McKusick ranked in this group as well, but lacked judicial experience. Next to these was a second group rated in fourth, fifth and sixth place--respectively, Bork and Judges Goodwin and Webster. Here, Judges Wiley and Clark were also counted. A third, distant group included Griffin and Congressman Wiggins. Ford placed the two women on his list, Judge Kennedy and HUD Secretary Hills, in this category as well. Oaks and Judge Roney were "X-out" due to speculation about troubles winning confirmation. Those remaining had been eliminated earlier and never fully investigated: Areeda, Boskey, Kurland, Scalia and Wilson.

After further conferring with Levi, Buchen, Senator Percy and Senate Judiciary Committee Chairman Eastland, Ford made a decision in keeping with his original determination to select a nominee based on professional considerations and restore confidence in government.

At 12:21 on the day after Thanksgiving, Ford phoned Stevens from the Oval Office.[83] Stevens remembers he was "in his office in Chicago."[84]

And my two law clerks were with me. My secretary was not. It was a kind of semi-holiday. We were trying to finish an opinion. The phone rang and I asked Sharon Baldwin to answer the phone for me and she picked it up, and I can still remember her holding the phone. She said, I think you're going to want to take this call. She handed the telephone to me and it was President Ford. And he told me what he proposed to do, and said before he announced it publicly he wanted to be sure that I would accept the position. It took me about two seconds to say he didn't have to worry about that.

Following their ten-minute conversation, Ford called Senators Eastland, Griffin and Hruska to tell them he would publicly announce his nominee later that afternoon.

Nomination and Confirmation

Immediately after Ford announced Stevens' nomination at a press conference, White House staff

began calling members of Congress for their reactions. Not surprisingly, reactions were mixed. Senator Percy, who knew Stevens well, said he was "an exceptional jurist." But, Stevens was unknown to many others. "Who," responded Massachusetts' Representative Tip O'Neill, "I never heard of him--who is he?" On reading Stevens' biography, he added, "Good Luck."[85] Democrats were generally pleased or relieved a hard-line conservative had not been picked. As Senator Kennedy commented, 'Thank you. Good to learn that it is a federal judge. They do not get enough recognition and are well trained for the position." Other Democrats and Republicans wondered whether "he [would] cause trouble with the Reagan people?"[86] After asking "what happened to the plans to name a woman, South Dakota Senator James Abourezk rather bluntly put it, "Too bad for you guys that Nancy Reagan isn't an attorney."[87]

Some women and women's organizations were let down and angry. At a meeting of the New York Women's Bar Association, Representative Bella Abzug charged:[88]

Not only did President Ford not designate a woman to the Supreme Court vacancy, an action which is long overdue but it appears that he has selected a man whose judicial record indicates he does not favor expanded rights for women. . . . His opinions consistently demonstrate a narrow construction of the law and a belief in judicial restraint.... Judge Stevens has exhibited an unwillingness to involve the Federal Court in the enforcement of our civil rights law.

A week after the nomination, the National Women's Political Caucus vowed to fight Stevens' confirmation.[89]

Nor were hard-line conservatives enthusiastic. In a Chicago Tribune article, "Two Cheers For President's Man In Middle," columnist (and later staunch Reaganite) Patrick Buchanan explained the "absence of enthusiasm for the President's decision is roughly with the visible sign of relief which has swept the nation's liberal community, which feared that Gerald Ford would seek out and nominate the most brilliant constitutional conservative in America. Quite consciously, however, he did not." Buchanan summed it up:[90]

Surely, Judge Stevens will be a decided improvement upon the judicial Jacobin he replaces, William Douglas, but what will a judicial moderate do to bring an end to the disaster the federal courts have made on America's public school systems, from Denver to South Boston?

One, then, is disappointed in the choice not because of what it says about Judge Stevens, a man of ability and integrity, but because of what it says about President Ford. He had in his own administration, in the Solicitor General [Bork], a constitutional conservative of brilliance, scholarship, courage, and youth. But Robert Bork was passed over, because as Newsweek wrote, "A controversial nominee was the last thing Ford was after."

On the first of December, Stevens' nomination was forwarded to the Senate Judiciary Committee. At lunch that day, Senator Percy introduced him to ten Senators.[91] Later, that afternoon Stevens made a round of half-hour visits with eight other Senators. This was not the usual practice (until after Stevens' nomination). But as Senator Philip Hart told the nominee, some Senators thought they may have misjudged Haynsworth because they had not met him before his confirmation hearings. Haynsworth had a slight speech impediment which, during his testimony before the judiciary committee, some mistook as a sign of duplicity. Hence, Hart and others wanted to informally chat with Stevens before his hearings.

The Senators, recalls Stevens, were very cautious about questioning him about controversial matters that might come before him once on the Court. While not asking Stevens his views on capital punishment at that time, South Carolina's Senator Strom Thurmond impressed on Stevens his own strong opposition to abolishing capital punishment.[92] The next day, Stevens met privately for the first time with Chief Justice Burger at lunch in the Chief's chambers.[93] Afterwards he made courtesy calls on twelve more Senators and met several others the following morning.

A week later, the Senate Judiciary Committee held three days of hearings on Stevens' nomination. Levi and Illinois Senators Percy and Adlai Stevenson enthusiastically endorsed him. Warren Christopher, chairman of ABA Standing Committee on Federal Judiciary, also praised the nominee's qualifications. Based on its investigation, he reported, the committee was

unanimously of the opinion that Judge Stevens meets high standards of professional competence, judicial temperament and integrity, and that is our committee's highest evaluation. To our committee this means that from the standpoint of professional qualification Judge Stevens is one of the best persons available for appointment to the Supreme Court of the United States.[94]

While Stevens's testimony on December 8 and 9 appeared amicable, his hearings were not free of controversy. "Although it may have seemed to outsiders that I sailed through the confirmation process," he remembers, "it didn't seem that way to me. It's more trying than it might appear to be to the outsiders."[95]

The only political opposition came from women's organizations--the National Organization of Women (NOW) and the Women's Legal Defense Fund. Testifying for NOW, Margaret Drachsler claimed that Stevens was insensitive to women's rights and misapplied the law in several sex discrimination cases. In her view, he "lack[ed] impartiality, a requisite for appointment to the Supreme Court."[96] Stevens stood on his record, though. Admittedly, he did not look favorably on the proposed Equal Rights Amendment to the Constitution. "Other than its symbolic value," he was not sure it would accomplish anything beyond that already available under the equal protection clause of the Fourteenth Amendment. "Women have not achieved full equality yet, but are marching in that direction," he observed while affirming his commitment to following precedent and developing trends in the law. As to his standard for applying the Fourteenth Amendment, he said it was "the same when a man or woman claims discrimination: Would he or she have fared better if he or she had been of the opposite sex?"[97] The Judiciary Committee was persuaded that "the cases cited as bases of opposition [to Stevens' confirmation] reflect [his] commitment to precedent and established procedures rather than any sexual bias."[98]

In addition, three private citizens testified in opposition on December 10. Anthony R. Martin- Trigona from Chicago charged that Stevens participated in a cover-up years earlier when serving as counsel to a special commission investigating members of the Illinois Supreme Court. But, Stevens testified that it was "simply not true" and the charges went uncorroborated. Rocco Ferran, testifying on behalf of the Citizens for Legislative Reform, opposed confirming another lawyer for the Court because experts from other disciplines should be represented as well. And Robert J. Smith of Michigan City, Indiana, in lengthy and rambling testimony contended several of Stevens' appellate rulings had cost him a livelihood.

On December 11, the Senate Judiciary Committee unanimously recommended Stevens' confirmation by the full Senate. Less than a week later, on December 17, after very brief discussion the Senate voted 98-to-0 to confirm him. Justice Stevens recalls "a sort of sense of disbelief" at returning to the Court. It was "very strange that here I should be sitting in the same Court where I had clerked a quarter century before, watched Thurgood Marshall argue before the bench, and read memos written by Byron White." Yet, he also felt "there was a sort of sense of continuity about the place, that the same names come back and forth."[99]

Conclusion

Justice Stevens' appointment was as much a product of Ford's "accidental Presidency" as the President's determined professionalism in restoring public confidence in government. Unyielding to the cross-cutting pressures within his Presidency pushing for a more politically symbolic nomination--whether of a woman or a well-known conservative--Ford adhered to his vision of what the Court and the country needed. And Stevens, as Ford puts it, "was the right man for the times."[100]

Stevens' opinions on the appellate bench struck Ford as "concise, persuasive and legally sound."[101] Comparing them with those written since being elevated to the Court reveals an impressive coherence, consistency, and careful attention to the facts in each case.[102] They also disclose a judicial philosophy and self-perception bearing a remarkable affinity with President Ford's conservativism--the conservativism of a measured professional approach to decision making, not that of sharp ideological commitment. When tackling issues of public policy, as in filling the vacancy on the Court, James M. Cannon, the director of Ford's Domestic Council, recalls the President typically preferring "the combination of a good memorandum and a firm discussion, a civil and correct discussion. He treat[ed] issues] more as if he were a judge. He listen[ed] to one argument and the other argument, then he retire[d] into his office and [made] a decision on it."[103] Regarding himself as "the most conservative member of the Court," Justice Stevens emphasizes he "never had an agenda" when explaining:[104]

that's because I really try very hard to minimize the influence of my own views and what's socially desirable in resolving the issues in the case. And I sometimes conclude that some of my colleagues are less inclined to do no more than is necessary to decide the case. I just think that the work of a judge is work that he does in response to the problems that come to him. And I really don't consider it part of a judge. A function to set out in a pioneering fashion and make new law. You do it as an incidental part of your work when you have to. But you don't chart your course in that way.

Justice Stevens' brand of judicial conservativism reflects well on, and seems a fitting tribute to, his presidential benefactor. And, unlike many Presidents who have been disappointed by their nominees,[105] President Ford is "proud of Justice Stevens' service on the Court." The Justice, Ford says, has "lived up to his expectations and been a forthright member of the bench."[106]

 

Acknowledgement: The author is grateful for the assistance of Lisa Tobein and William J. Stewart of the Gerald R. Ford Presidential Library, and to Judge Harold Tyler for his comments.

Endnotes

1. Letter, October 28, 1928, Harlan Fiske Stone Papers, Box 24, Library of Congress quoted and further discussed in David M. O’Brien, Storm Center: The Supreme Court in American Politics (New York: North, 1986), at p. 47.
2. For further discussion, see David M. O’Brien, Judicial Roulette: A Twentieth Century Task Force on Judicial Appointments (New York: Twentieth Century Fund, 1988).
3. For further discussion, see O’Brien, Judicial Roulette, Ch. 3; and generally, Henry J. Abraham, Justices and Presidents (New York: Oxford University Press, 2d ed. 1985).
4. Interview with President Gerald R. Ford (February 16, 1989).
5. Interview with Justice John Paul Stevens, Supreme Court of the United States (October 17, 1988).
6. Robert Hartmann, "The Loyalist and the Praetorian Guard," in K. Thompson, ed., The Ford Presidency (Lanham, MD: University Press of American, 1988), at pp. 92-93.
7. For further discussion, see, O’Brien, Storm Center, at pp. 97-99; and Bruce A. Murphy, Fortas: The Rise and Ruin of a Supreme Court Justice (New York: Morrow, 1988).
8. Robert Hartmann, Palace Politics (New York: McGraw-Hill, 1980), at p. 60. For a somewhat different view, compare Gerald R. Ford, A Time to Heal (New York: Harper & Row, 1970), at p. 90.
9. Ford, A Time to Heal, at p. 93. See also, materials on the investigation of Justice Douglas in the Robert Hartmann Papers, Gerald R. Ford Presidential Library, Ann Arbor, Michigan. [Hereafter cited as FPL.]
10. News, Release, December 16, 1970, by Congressman Ford, in Hartmann Papers, Box 17, FLP. See also, Letter to Congressman Celler, Chairman of the Committee on the Judiciary, July 29, 1970, Hartmann Papers, Box 12, FPL.
11. Ford, A Time to Heal, at p. 94.
12. I am indebted to Judge Tyler for these observations (April 7, 1989).
13. Letter of Retirement, Weekly Compilation of Presidential Documents (November 12, 1975).
14. Letter of President Ford to Justice Douglas, Weekly Compilation of Presidential Documents (November 12, 1975).
15. "Questions and Answers," November 13, 1975, in Philip Buchen Papers, Box 62, FPL.
16. Ford, A Time to Heal, at p. 334.
17. Philip Buchen, "Reflections on a Politician’s President," in Kenneth Thompson, ed., The Ford Presidency, at p. 29.
18. Ford, A Time to Heal, at p. 235.
19. Gerald Ford, "Attorney General Edward H. Levi," 52 University of Chicago Law Rev. 284 (1985), at p. 284.
20. Ibid.
21. Ford, A Time to Heal, at p. 236.
22. Ford, University of Chicago Law Rev., at p. 284.
23. Ford, op. cit., at p. 287.
24. For further discussion of the role of the Department of Justice in selecting lower court judges from President Roosevelt to Reagan, see, O’Brien, Judicial Roulette, at Ch. 3.
25. This discussion draws on the author’s interviews with Edward Levi (December 19, 1986) and Phil Modlin (December 9, 1986), conducted in the preparation of Judicial Roulette and to which the reader should refer. Also consulted were materials in Edward Schmultz’ Papers, Box 7, at White House Central Files (WHCF), FPL.
26. See, David O’Brien, "The Reagan Judges: His Most Enduring Legacy?", in C.O. Jones, ed., The Reagan Legacy: Promise and Performance (Chatham, N.J.: Chatham House, 1988), at pp. 60-101.
27. Stephen Markman, "A Comparison of Judicial Selection Procedures," Memorandum for Attorney General Edwin Meese, September 8, 1986 (an unpublished manuscript furnished by the author and discussed in Judicial Roulette).
28. See O’Brien, Judicial Roulette, Ch. 5.
29. Interview with President Ford.
30. Ford, A Time to Heal, at p. 334.
31. Interview with President Ford and "Notes on Supreme Court Vacancy," Buchen Papers, Box 62, FPL.
32. Interview with President Ford and "Notes on Supreme Court Vacancy," Buchen Papers, Box 62; and Edmund Schmultz Papers, Box 7 FPL.
33. See materials in Buchen Papers, Box 64, FPL.
34. "Memorandum for the President," Richard Cheney Papers, Box 11, FPL.
35. Interview with President Ford. See, Abraham, Justices and President, at p. 323.
36. Buchen Papers, Box 64, FPL.
37. Cheney Papers, Box 11, FPL.
38. Letter to the President, November 18, 1975, from Senator McClure, Presidential Handwriting Files, Box 13, FPL.
39. Memorandum from Lindh, November 17, 1975, in John Marsh Papers, Box 32, FPL.
40. Interview with President Ford.
41. Ford, A Time to Heal, at p. 335.
42. See, the discussion in the text at infra note 78.
43. Interview with President Ford.
44. Letters in Buchen Papers, Box 62; and John Marshal Papers, Box 32, FPL.
45. Letter, October 17, 1975, White House Central Files–Federal Government (WHCF-FG), Box 50, FPL.
46. See, O’Brien, Judicial Roulette, "Epilogue: The Bork Controversy."
47. "Memorandum for the President," November 21, 1975, in Marsh Papers, Box 32, FPL.
48. Markman, "A Comparison of Judicial Selection Procedures."
49. Cheney Papers, Box 11, FPL.
50. Letter, November 17, 1975, in WHCF-FG, Box 51. FPL.
51. Buchen Papers, "Letters Recommending Potential Nominees," Box 62, FPL.
52. "Memorandum for Phil Buchen," November 14, 1975, in Presidential Handwriting, Box 13, FPL.
53. Note to Dick Cheney, in Presidential Handwriting, Box 13, FPL.
54. Judge Tyler to author, April 7, 1989.
55. For a further discussion of Justices advising Presidents, see, O’Brien, Storm Center, at pp. 85-96.
56. Letter, November 10, 1975, in Cheney Papers, Box 11, FPL.
57. See, Buchen Papers, Box 21; FPL.
58. "Memorandum for the President," November 10, 1975, Cheney Papers, Box 11, FPL.
59. Ibid.