Elena Kagan: Would she turn Supreme Court into We the People?
Elena Kagan, if confirmed as the next Supreme Court justice, would shift the balance dramatically – with three women and a Jewish-Catholic bloc. So would the high court look like We the People?
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In the beginning, long before religion, race, and Roe v. Wade, there was geography. Starting with George Washington's first batch of Supreme Court justices, "the need for geographic diversity was a matter of practicality," says David Yalof, author of the book "Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees." Until Congress created the courts of appeal in 1891, the justices "rode circuit," traveling to their home regions to hear appeals arising out of federal courts.Skip to next paragraph
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And geography played a role in President Lincoln's appointment of Justice Stephen J. Field, who came to the court to represent the country's newly admitted Pacific Coast states. His formative experiences in California's unregulated gold rush boomtowns led him to become the architect of the Supreme Court's turn-of-the-century laissez-faire, pro-property rights jurisprudence.
Political loyalty also mattered to the early presidents. Chief Justice John Marshall's Federalist Party affiliation animated perhaps the most important case in Supreme Court history: 1803's Marbury v. Madison. President Adams appointed Marshall in 1801 so as to entrench the Federalists' political philosophy in a national government about to be taken over by their ideological antagonists, Jefferson and his Democratic-Republican Party. By establishing judicial review – or the court's power to strike down an act of Congress – Marshall's Marbury opinion sent a warning to the Jefferson administration and Congressional allies to tread lightly in setting national policy that may be at odds with the Federalists on the court.
Loyalty and geography governed even the nomination of the court's first Catholic, Roger B. Taney. "There is no evidence that [President] Jackson meant to appeal to a Catholic constituency [with Taney]," Mr. Yalof notes.
In the tense antebellum period, presidents sought to maintain the court's sectional balance to stave off the Union's dissolution. When Taney, a slave-holding Marylander, became chief justice in 1836, he represented the sensibilities of the important border state as the court began hearing many cases that divided its justices along regional lines. But Taney's majority opinion in the 1857 Dred Scott case, which found that African slaves and their free descendants could never be US citizens, helped hurl the country toward the Civil War.
Although regional representation continued through and beyond the war, it ceased for a century as political shorthand. Instead, presidents sought political loyalists from every section of the country: Lincoln primarily selected Unionists, Gilded Age presidents largely nominated free marketers, and Franklin D. Roosevelt exclusively seated New Dealers.