So far, we’ve spent a disproportionate amount of time during the current presidential campaign talking about the candidate’s personalities. Perhaps that was unavoidable in a cycle in which Donald Trump and Hillary Clinton are the frontrunners for the major party nominations. The discussion about key issues has often been obscured by the discussion about Trump’s suitability and Clinton’s credibility. Cynicism about our leaders is rampant and has fed the desire for a non-politician, although it’s not clear how different a Washington run by Trump from one by Clinton except on immigration. But lurking beneath the surface in any presidential campaign is the one thing that we all know really will be affected by the outcome next November: the identity of possible Supreme Court nominees.
With a number of aging members of the high court still serving out their lifetime appointments, the next president is likely to play a key role in determining the direction of American law. If a Democrat wins, the current setup in which four liberals and four conservatives wait to see which way the swing vote (usually cast by Justice Anthony Kennedy) will go may be altered to one with a clear liberal majority for the foreseeable future. That will affect decisions on a host of issues involving abortion, gun rights, free speech, religious freedom, and campaign finance laws that will make radically diminish individual rights. And even if a Republican wins, the danger of that happening will still exist since we all know that while liberal choices stay liberals, some conservatives appointed by Republicans have a way of “evolving” toward liberal stands.
All the Republican candidates will vow to appoint strict constructionists that believe in judicial restraint and all may actually mean it. But predicting what happens when a Republican is appointed to the Supreme Court is a loser’s bet, as we’ve seen with many of those elevated to it in the last 70 years. This conundrum is brought to mind by the death this week of the man that Republican presidents considered for the Supreme Court three times. Judge Arlin Adams, who died at his home outside of Philadelphia at the age of 94, served for decades on the Third Circuit of the U.S. Court of Appeals. But Presidents Richard Nixon (who had also chosen him for his Court of Appeals slot), Gerald Ford, and Ronald Reagan also considered him for a SCOTUS appointment. Each time they chose someone else. Of particular note was Ford’s choice. Adams was a finalist for the slot that John Paul Stevens got. Considering that Stevens became a liberal stalwart rather than the conservative as Ford supposed him to be, has made Adams the answer to one of the great what-if questions for conservatives.
Had Adams been picked any one of those times, he would have ended the drought of Jewish Supreme Court judges that stretched from the Abe Fortas’s resignation in 1969 until Bill Clinton’s choice of Ruth Bader Ginsburg in 1993. But that is mere Jewish history trivia, and that distinction needn’t detain us long.
Adams was rejected each time because his association with “liberal Republicans” tainted him in the eyes of White House conservatives. He had served in Pennsylvania Governor William Scranton’s cabinet and on civil rights, the issue that divided the GOP in the early 60s but which is now a matter of consensus in both parties.
In the case of Nixon’s choice, William Rehnquist, conservatives had nothing to complain about. But Stevens was a terrible disappointment. As for Anthony Kennedy, who ultimately got the nomination for which Adams was mentioned, he is mixed bag for conservatives since he sometimes comes down on their side, but has also displayed a penchant for judicial activism that takes him far away from the principles of restraint, belief in legislative supremacy, or the original intent of those who wrote the laws.
As with all counter-factual queries, we don’t really know how Adams would have fared in Washington. Perhaps, like so many Republicans have done, he might have assimilated into his environment. Perhaps he too would have “evolved” and might have help steer the country on a path that created precedents that previous generations of jurists would have thought inconceivable in their scope and abandonment of the principles of limited government and individual rights.
The notion of a deeply modest man like Judge Adams, who was something of a legend in the Philadelphia legal world, being swept off his feet by the temptations of the capital is hard to believe. What we do know is that he was the man who wrote in 1972, “courts serve democracy best by leaving the principal issues confronting the citizenry for decision to the political branches of the government.” Though he was certainly not what we would call a “movement conservative,” it’s difficult to avoid pondering how different would the political and legal history of the country in the last 45 years have been had the man who wrote — and believed — those words been on the Supreme Court.
Adams is a good example of what we now call the “greatest generation” achieved. From a modest Jewish background in Philadelphia, he worked his way through school, served honorably in the Navy during World War Two and ultimately ascended to the heights of the legal world. Even after he resigned from the appellate bench, he served the country with distinction investigating federal corruption.
But while we do well to mourn the passing of a great man who was not well known outside of legal circles and his own community, those conservatives who wish to be our next president, should think about how they will choose Supreme Court judges. If they wish to avoid the mistakes of past Republicans, they should remember the name of Arlin Adams as well as of those nominees who disappointed the presidents that appointed them. May Judge Adams’ memory be for a blessing.