The Supreme Court's John McKinley Seat Gets A Nominee.

Not much seems to be known about Supreme Court nominee John Roberts. He looks a bit like Dan Quayle but he comes across as more substantial than the former Vice-President. His clerking for Chief Justice Rehnquist and working in the Reagan Administration suggest he's going to be a more reliable conservative vote on the Court than was Sandra Day O'Connor. The President, unsurprisingly to those who voted for him, appears to have done what he promised his supporters he would do during the campaign: nominate a conservative justice for the court.

Another aspect of this nomination is that the President avoided the trap of consecrating O'Connor's seat as being a woman's seat. With this choice George W. shows once again that he is not at all like his father George H.W. The first President Bush fell into the affirmative action trap that there is an African-American seat on the court with his appointment of Clarence Thomas to replace Thurgood Marshall.

The President also avoided the trap of viewing O'Connor's seat as necessarily belonging to a moderate or swing voter like O'Connor as the Democrats have been arguing. The historical problem with the Democrats' argument is that the seat O'Connor is vacating is not hers alone; 9 justices held the seat before her and their philosophies were hardly uniform.

Among the justices who preceded her are the great and the not so great: John Archibald Campbell who sided with the majority in the Dred Scott decision; David Davis, who was appointed by President Lincoln in 1862 but still went on to write Ex Parte Milligan, the historic case that limited the right of the Executive branch to try civilians in wartime in military courts in areas where civil courts remained operative; John Harlan, the famous dissenter in Plessy v. Ferguson; and Owen Roberts, the Hoover appointee who was the lone Republican on the Supreme Court for a long time during the Roosevelt era. The others are Potter "I know it when I see it" Stewart, a swinger like O'Connor, Harold Bitz Burton, Edward Sanford, and Mahlon Pitney, not exactly giants in the field.

But the first justice to hold this seat was John McKinley, appointed in 1838. He is remembered today not for being a swing voter or a moderate but for being a champion of state's rights.

-tdr