Fordham Law

Lesson for Obama in Ford's selection of Stevens

William Michael Treanor in USA Today, April 15, 2010

Media Source

By William M. Treanor

Nominating a U.S. Supreme Court justice is fraught with uncertainty. It is often hard to predict how a justice will act on the bench, and presidents throughout our history have regretted their selections.

LETTER: What President Ford told Dean Treanor

President James Madison, in 1811, was hopeful that his nominee, Joseph Story, would become a strong advocate for states' rights. Story instead allied himself with Chief Justice John Marshall, and together they ushered in an era of court support of strong federal government.

Over a century later, President Dwight Eisenhower described his nomination of Earl Warren as "the biggest damned-fool mistake I ever made."

But, while Justice John Paul Stevens, who will now leave the court after 35 years, became the leader of the court's liberal wing, President Gerald Ford was always proud of his selection.

Before he selected Stevens, President Ford told Attorney General Edward Levi that, in choosing a candidate for the court, he wanted a judge who was competent, who was an independent thinker, and who had absolute integrity. The attorney general gave the president a list of candidates, and the president, after a night of reflection, picked then-Judge Stevens.

When Stevens celebrated his 30th anniversary on the top court, Fordham Law held a conference in his honor. As we prepared for the conference, I was astonished to receive a letter from former president Ford marking the occasion. Ford wrote me that he was "prepared to allow history's judgment of my term in office to rest, (if necessary, exclusively) on my nomination 30 years ago of Justice John Paul Stevens. ... He has served his nation well, at all times carrying out his judicial duties with dignity, intellect, and without partisan political concerns."

When I presented the letter to Stevens, he had tears in his eyes, and he later hung the letter on his office wall. I told Benton Becker, former president Ford's counsel, how much the letter meant to Stevens and how honored I was to present it. I was further honored when Ford then called me on the phone and told me personally how proud he was of Stevens' nomination.

Stevens is often described as a justice who moved to the left over his time on the court. He has not seen himself in that way. He has said, "I don't really think I have changed. I think there have been a lot of changes in the court. I can see myself as a conservative, to tell you the truth, a judicial conservative."

Ford's letter to me highlights the ways in which Stevens acted consistently with the views of the Republican president who appointed him. He wrote: "I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal case and on the constitution's broad grant of regulatory authority to Congress."

At the same time, Ford told me that he did not agree with all of Stevens' decisions. The president said in an interview, "He has turned out to be one of the more liberal members of the court, which is different than I envisioned him, but he's a very good legal scholar, and I support him."

When Ford nominated Stevens, he wanted to restore the public's faith in the functioning of government. In the wake of Watergate, Ford longed to reunite the country; the Stevens nomination was a very important part of that mission.

"(Richard) Nixon did do great harm to two of the three branches of government," the late legal scholar John Hart Ely wrote to Ford, after Justice William Douglas retired. "The obvious harm was to the office of the presidency. ... 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."

Ford wanted to avoid this cynicism, and he was pleased, throughout his life, by his selection. His comments to me reflect the fact that, at the end of his life, he evaluated Stevens by the same factors that he employed when he selected him: He wanted a justice whose service on the bench would be marked by integrity, excellence and independent thought. As he surveyed Attorney General Levi's list in 1975, John Paul Stevens' name stood out, and, as he thought back on his career, Ford was happy to have that selection serve as his presidential legacy.

Justice Stevens' career on the bench was marked by countless highlights, but the praise by the man who appointed him could be the best tribute to his extraordinary service on the court.

William M. Treanor is the dean of Fordham Law School.