There has been much noise lately that President Trump ought not get a nominee on the Supreme Court while an investigation is in progress, or, if he does, that the nominee should recuse himself in any case of constitutional confrontation with the President on the order of United States v. Nixon (1974). The theory is that loyalty to the appointing President creates some kind of conflict of interest. I find the notion quite dubious.
First, let's take a look at that case. The case was a pivotal moment in the Watergate scandal, and an adverse decision would likely (and ultimately did) spell the end of the Nixon Presidency. President Nixon had appointed four members of the Court, so on the loyalty theory all four should have voted for his position, right? Not quite.
The opinion of the Court was written by Chief Justice Warren Burger, appointed by President Nixon. It was joined by Justices Blackmun and Powell, appointed by President Nixon. Justice Rehnquist recused himself, but presumably not because he was appointed by President Nixon. It was more likely his then-fairly-recent work in the Office of Legal Counsel. So, the Court had four Nixon appointees and zero votes in his favor.
President Jefferson once said that with every appointment he made a hundred enemies one ingrate. True or not, there is no empirical basis I know of to support the notion that Supreme Court Justices vote for their appointing presidents out of loyalty or gratitude.
How about ambition for a future appointment? Not much headroom there. The Chief Justice has nowhere up to go. No Associate Justice has ever been elevated to Chief by the same President that appointed him to the Court initially, although LBJ tried. In any case, the chance of the CJ chair becoming vacant in President Trump's tenure is close to zero.
There is nothing to this objection. As to Judge Kavanaugh's views on civil or criminal cases against a sitting president generally, I addressed that objection in an earlier post.
Indeed, for a long time, the story has been how frequently SCOTUS appointees have voted against the policies or beliefs of the Pres who appointed
them. Eisenhower joked or at least half-joked that the 2 biggest mistakes he made both sat on the Supreme Court (Warren and Brennan).
And, I would add, that I doubt JFK would have been pleased by some of Byron
White’s decisions.
I didn't think Ike was even half joking. In Brennan's case, at least, it was hands down the worst mistake of his presidency.
Which White decisions do you think JFK would have disapproved of? I think White was something of a "neoconservative" in the original sense of the term -- a person who was a liberal as that term was used in the JFK days and did not change his positions, but found himself labeled "conservative" (by some, at least) as the meaning of terms changed.
In grandson David Eisenhower's biography, he includes the President's extreme regret at his appointments which admittedly created what he called, the “Warren Court’s bias.”
In response to its Abington v. Schemp decision, Pres. Eisenhower delivered a sermon at his Gettysburg church, stating:
“I do not see how any Supreme Court in the world can declare teachings
in this vein illegal,” Ike preached.
“There is no reason for Americans to raise their children in a communist type school that denies the existence of a God ..
The theory of the equality of man is religious in origin.”
As for Byron White and JFK--it is hard to do anymore than speculate given JFK's untimely death and the types of issues that have emerged since 1963. If we assume that JFK would have gradually adopted the views espoused by liberal democrats in after his assassination(Ted Kennedy is probably as good a benchmark for that as anyone)--it is at least arguable that JFK would not have agreed with White's opinions/dissents in Roe v. Wade, Runyon v. McCrary, Gregg v. Georgia, Miranda, or Bowers v. Hardwick. Of course, this is in the realm of alternative history since we don't know how politics and the judiciary would have evolved had JFK served two full terms etc.
Okay. I don't share your assumption, but since it's all speculation, I'll just leave it at that.