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Gorsuch would be 8th man to hold ‘Justice Scalia’s seat’

February 8, 2017

WASHINGTON (AP) — On the night Judge Neil Gorsuch was nominated to fill Justice Antonin Scalia’s seat on the U.S. Supreme Court, he was thinking about history.

“The towering judges that have served in this particular seat on the Supreme Court, including Antonin Scalia and Robert Jackson, are much in my mind at this moment,” Gorsuch said in the East Room of the White House following his nomination by President Donald Trump.

In the year since Scalia’s death last February, the court’s empty spot has often been referred to as “Justice Scalia’s seat.” But as Gorsuch suggested, the seat’s history actually goes back more than 150 years. The lineage includes seven men, all but one nominated to the seat by Republican presidents.

The group includes Jackson, the chief U.S. prosecutor at the post-World War II Nuremberg trials, and two men who went on to become Chief Justice: William Rehnquist and Harlan Fiske Stone. Jackson and Scalia are considered among the best writers to have served on the court.

John Q. Barrett, a law professor at St. John’s University in New York, said being nominated to the court is like moving into a historic house.

“It’s sort of like ending up the tenant or the owner of a house that once was occupied by some great person,” said Barrett, an expert on Jackson, the fourth man to hold the seat.

Jackson, who took a year off from the court to prosecute Nazi war criminals at Nuremberg, was one of three justices to dissent in Korematsu v. U.S., a case that upheld Japanese internment during World War II.

Barrett said each spot on the court has a distinguished history and the seat’s former occupants provide “cachet” or “a bit of an aura.” But they’re also happenstance. Justice Scalia loved that he wound up in the seat formerly held by Jackson, Barrett said, and citied Jackson as one of his heroes.

“I’ll tell you who I like a lot. I like one of the predecessors in my seat on the Court, Robert Jackson ... I liked about him that he was usually on the right side of the case, which meant that he was usually adhering to the text,” Scalia told Charlie Rose in 2012.

The seat Gorsuch would occupy if confirmed was created by an act of Congress in 1863, in the middle of the Civil War. The idea was to increase support for the Union on the court by creating a tenth seat, though later acts of Congress returned the court to its current nine members.

For the seat’s first occupant, Republican President Abraham Lincoln chose Stephen J. Field, a Democrat he thought would be sympathetic to his reconstruction plans. Field went on to serve the longest in the seat, 34 years, making two unsuccessful runs for president while sitting on the court. Paul Kens, a political science professor at Texas State University who wrote a book about Field, said Field saw the law as malleable.

“He was pretty good at molding the language of the Constitution to fit his own personal philosophy,” Kens said.

Later occupants of the seat included Joseph McKenna, who served four terms in Congress as a representative from California and was the first justice to own a gasoline-powered car, and John Marshall Harlan II, who wrote a Vietnam-era opinion that said the First Amendment protected a person who wore a jacket with a phrase that used an expletive to curse the draft.

Harlan Fiske Stone was the first occupant of the seat to be promoted to chief justice but served only five years in the new post. He had fatal a cerebral hemorrhage while announcing an opinion in 1946. More recently, the seat was held by William Rehnquist, a former Jackson law clerk. Known for his dissents while an associate justice, he worked to build consensus after becoming chief in 1986.

Like Gorsuch, who earned his undergraduate degree from Columbia University, other occupants of the seat have also had ties to the school. McKenna, the seat’s second occupant, got further legal training at Columbia following his confirmation. And Stone, the seat’s third occupant, was dean of the Columbia law school for more than a decade.

Gorsuch may be encouraged that most of the justices who have occupied the seat have spent a long time on the court — an average of about 25 years.

Not all justices feel a kinship with their seat-holders or even like their work. There seems to be no love lost between Justice Sandra Day O’Connor, the first woman to join the court, and her successor Samuel Alito, whose appointment in 2006 moved the court to the right. Critiquing the court’s Citizens United campaign finance ruling in 2010, O’Connor said: “Gosh, I step away for a couple of years and there’s no telling what’s going to happen.”

Barrett, the Jackson scholar, cautioned against reading too much into the legacy Gorsuch might join.

“It’s a nice talking point,” he said of the significance of assuming another justice’s seat. “It’s kind of cool to imagine that person in their time, where you now are.”


Follow Jessica Gresko on Twitter at https://twitter.com/jessicagresko.

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