Commentary: With Gorsuch, don't judge the book by its cover

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Justice Sandra Day O'Connor and President Ronald Reagan after her historic swearing-in in September 1981.

George Parry

is a former federal and state prosecutor who practices law in Philadelphia

'The biggest damn fool mistake I ever made." So said President Dwight Eisenhower of his decision to appoint Earl Warren chief justice of the United States.

In the 1930s, Warren had been the tough district attorney of Alameda County, Calif. In 1938, after campaigning against Franklin Roosevelt's New Deal, Warren was elected California's attorney general. There followed three consecutive terms as that state's Republican governor.

Significantly, in the immediate aftermath of the Pearl Harbor attack, Attorney General Warren had been instrumental in the internment of his state's peaceful, law-abiding, and industrious Japanese American population. In 1942, as these American citizens of Japanese descent were being arrested and robbed by the government of their businesses, bank accounts, and homes, Warren publicly condemned them as "the Achilles heel" of law enforcement's efforts to prevent alien subversion and sabotage. He explained that "when we are dealing with the Caucasian race, we have methods that will test [their] loyalty," but not so the inscrutable Japanese Americans who, in Warren's estimation, could not be trusted.

In 1943, then-Gov. Warren vociferously opposed the parole of any internees since, "if the Japs are released, no one will be able to tell a saboteur from any other Jap. . . . We don't want to have a second Pearl Harbor in California. We don't propose to have the Japs back in California during this war if there is any lawful means of preventing it."

In 1948, Warren ran for vice president of the United States on the Republican ticket led by former Manhattan District Attorney and New York Gov. Thomas Dewey. They lost to Harry Truman in a stunning upset of Trumpian proportions. But by 1953, Dewey, acting on behalf of President Eisenhower, was vetting candidates for federal judgeships. So it was that Dewey, the racket-busting prosecutor, recommended to Eisenhower the appointment of Warren, another tough law man, to be chief justice of the United States.

Poor Ike. Neither he, Dewey, nor anyone else saw it coming. For inexplicably, despite his well-established law-and-order credentials, once he became chief justice, Warren built and led the coalition of justices who radically transformed the Supreme Court into an activist liberal super legislature that championed the rights of criminal defendants, ignited the civil rights revolution, and paved the way for the judicially created progressive social engineering that has followed.

Most notably, in the 1954 case of Brown v. Board of Education, Warren prevailed upon his colleagues to render a unanimous decision declaring an end to racial segregation in public schools. Even Justice Hugo Black, a former member of the Ku Klux Klan, joined in this decision.

Brown set off a firestorm of outrage and civil disobedience throughout the segregated South and put Eisenhower in the disagreeable position of having to enforce a legal mandate with which he personally disagreed. But when Gov. Orval Faubus and the Arkansas National Guard barred the entry of nine black students into Little Rock's Central High, Eisenhower sent the 101st Airborne Division to push aside the Guardsmen and integrate the school, literally at bayonet point.

Warren's unpredictable reincarnation and Eisenhower's resulting consternation are not unique in our history. After Abraham Lincoln appointed Salmon Chase to the court, the new justice found unconstitutional the law by which Lincoln was financing the ongoing Civil War. Not only was this a vexing ruling in time of war, it was truly astounding given that Chase, as secretary of the treasury, had helped write the very law that he then declared illegal.

Similarly, Theodore Roosevelt came to deride his court appointee Oliver Wendell Holmes as having a backbone weaker than a "banana." Harry Truman concluded that his appointee Tom Clark was "a dumb son of a bitch." Ronald Reagan appointed Justices Sandra Day O'Connor and Anthony Kennedy, who, to put it mildly, failed to perform as advertised. A nominee of Franklin Roosevelt, the liberal law professor Felix Frankfurter, migrated to the right once he was on the court. Most recently, Chief Justice John Roberts stunned conservatives by saving Obamacare from legal oblivion. The list goes on, but you get the idea.

Now President Trump has nominated Neil Gorsuch to membership on the court. He appears to be a reliably conservative jurist, and odds are that he will remain so as a justice of the court.

At his confirmation hearing, we can expect the usual anguished parsing of his written legal opinions, school records, public and private utterances, and exploration of his background and resume. Given the distemper of the times, there undoubtedly will be the usual rancorous psycho drama that attends such proceedings, including the standard semihysterical predictions of societal collapse should he be confirmed.

But all of the senatorial blather both pro and con about the nominee will be nothing more than a theoretical discussion of how he might vote once he is on the court. Interesting, no doubt, but until the nominee is facing an actual case with specific facts and real legal issues presented by able advocates, there is no way to even remotely approximate which way he or any other member of the court will decide any given dispute.

For as Warren and so many others have demonstrated, when it comes to Supreme Court nominees, sometimes what you see isn't what you get. We may think we know how a Justice Gorsuch will rule, but, if Eisenhower, Reagan, Lincoln, both Roosevelts, and any number of other dead presidents were here, they might well beg to differ.

lgparry@dpt-law.com