Naming a Justice

When Thurgood Marshall announced his retirement from the United States Supreme Court, politicians and pundits across the country bewailed the president’s succumbing to “politics” when selecting Marshall’s replacement. “Where are the giants?” demanded Newsweek, adding that “politics is packing the court with mediocrity.” In fact, this Court’s intimate relation to “politics” is as old as the Court itself, and it has managed to give us, along with the pygmies, some giants. Starting with George Washington, every president selecting a Supreme Court justice has kept clearly in mind the nominee’s compatibility with his own governmental—that is, “political”- philosophy.

When nominating a new justice, the president always lauds the nominee’s “experience,” “background,” and “demonstrated legal ability.” The encomiums, however, come only after a selection process calculated to ensure that the newcomer’s future opinions will reflect the correct political outlook. Presidents leave after a term or two, representatives and senators fall prey to electoral accidents, but justices sit on the bench for life, preserving those principles for which the president who picked them has always stood—or so, at least, the president hopes.

This urge to select a justice for reasons other than his intrinsic merit strongly affected even the appointment of four of our greatest justices: Joseph Story, Oliver Wendell Holmes, Louis D. Brandeis, and Felix Frankfurter. The history of their elevations illustrates both the persistence of the litmus test for selection and the development of the Senate’s role in the process.

In September 1810, Justice William Gushing died, the last of George Washington’s original Supreme Court appointees. To maintain geographic balance on the seven-man Court, President James Madison, planning to select a New Englander, found himself trammeled by the personal needs of his predecessor and political patron, Thomas Jefferson.

At the time, Jefferson was fighting a lawsuit brought against him in a Virginia federal court. The plaintiff, the Louisiana attorney Edward Livingston, was seeking one hundred thousand dollars in damages for trespass to riverfront land at New Orleans, an incursion Livingston alleged had been ordered by Jefferson and the then Secretary of State, Madison.

Jefferson, as one biographer has observed, “always viewed any legal proceeding against himself with a strange mixture of rage and panic.” He knew the case would come to trial in the federal circuit court for Virginia, whose presiding judges were the ailing Cyrus Griffin and Jefferson’s enemy Chief Justice of the United States John Marshall. Convinced that Marshall’s presence would deprive him of any chance at a fair trial, Jefferson spent almost a year trying to effect the appointment of a more sympathetic circuit court bench.

Marshall, of course, he could not touch. But Griffin seemed about to topple, and Jefferson had recently received a letter from John Tyler, father of the future President, asking for Griffin’s place, so that Tyler could, as he put it, “lay … down softly on a bed of roses in my latter days.” Jefferson immediately wrote Madison, urging Tyler’s appointment as a “counterpoint to the rancorous hatred which Marshall bears to his country.”

When Griffin died in December 1810, Madison appointed Tyler. But, like the careful lawyer he was, Jefferson knew that even with his man safely ensconced, he could still lose in the trial court. An appeal to the Supreme Court would follow, but of the seven justices, only three—his own appointees—professed Jefferson’s political faith. Thus, when death overtook Gushing, Jefferson called it “a Godsend” and seized the opportunity to push “the appointment of a decided Republican, with nothing equivocal about him.”

Madison’s efforts to accommodate Jefferson, compounded by his own maladroitness, turned the replacement hunt into a political farce unparalleled in Supreme Court history. First, Madison chose Jefferson’s onetime Attorney General Levi Lincoln. The Senate confirmed him, but Lincoln, going blind, could not accept. Another of Jefferson’s close political associates, the former Postmaster General Gideon Granger, was a possible second choice. Earlier, however, he had lobbied so brazenly for the scandal-ridden Yazoo land scheme that Madison decided to not even try to submit his name.

Barnabas Bidwell, like Lincoln and Granger a prominent Massachusetts Republican, came briefly into the picture. His candidacy suffered seriously from his living in Canada, a fugitive from prosecution for embezzling state funds. By now claims of other New England states for what was considered a regional seat were complicating the process. Madison kept trying. He sent up the name of Alexander Wolcott, Connecticut’s Republican boss (“manager” was the term our more restrained forebears used). The most Wolcott’s supporters could say for him was that by hard study after joining the Court he would soon bring himself to his associates’ level of learning. The Senate, unimpressed, rejected him.

Madison’s next suggestion would have changed American history. John Quincy Adams, ambassador to Russia, one of the most intelligent and thoughtful political figures alive, won unanimous approval, delighting his father and mother. But although Abigail Adams, as she said, would rather her son held “the office of judge, than that of a foreign embassy or even Chief Magistrate of the United States,” he declined.

Finally, Madison gave up. He let the matter sit for six months and then nominated Joseph Story, a former congressman who was at the moment Speaker of the Massachusetts House of Representatives. Only 32 years old, but already a prolific author and nationally known lawyer, Story was as ebullient as he was scholarly. “When he was in a room,” a contemporary said, “few others could get in a word; but it was impossible to resent this, for he talked evidently not to bear down others, but because he could not help it.”

Jefferson did not applaud the nomination. He called Story a “tory,” and, worst of all, a “pseudo-Republican.” Madison, however, had listened to enough eructation from Monticello. Perhaps the Senate shared his weariness; confirmation came only three days after Madison submitted Story’s name. By February 1812, he was was on the bench, just in time to help usher Court and nation into the commercial and industrial expansion of the nineteenth century—and incidentally remained an active professor at the Harvard Law School and wrote a series of treatises that shaped American legal thought into the time of Oliver Wendell Holmes. (Jefferson, it turned out, need not have worried about the lawsuit in the first place. When it came up for trial before Tyler and Marshall, they opined that Livingston should have sued in a Louisiana court, and allowed an opening-round motion to dismiss.)

If the brilliant Story went to the Supreme Court only because the president could find no one more politically suitable, Oliver Wendell Holmes, equally outstanding, almost missed his elevation because a president misread the political message of a speech Holmes had given.

Holmes had long coveted a Supreme Court seat. In 1879, he told the Boston lawyer George B. Upham, a distant relative, that he wished to become chief justice of Massachusetts’s highest court and eventually, “impossible as it might seem,” a justice of the United States Supreme Court. He practiced law and in his spare time wrote the lectures that, published in 1881 as The Common Law, gave an entire new theoretical underpinning to the jurisprudence of crime, contracts, and tort. The lectures, in turn, led to a professorship at the Harvard Law School in 1882. Then, with dramatic suddenness, Holmes received an appointment to the state’s Supreme Judicial Court.

As associate justice and later chief justice, Holmes worked with extraordinary vigor to weave his legal theories into the fabric of the living law. He also delivered a series of addresses, most notably two Memorial Day speeches, in 1884 and 1895, extolling the soldierly virtues of obedience and sacrifice, and a 1901 talk commemorating the centenary of Chief Justice John Marshall’s ascension, in which he observed that Marshall’s greatness resulted more from “fortunate circumstance” than from any origination of “transforming thought.”

Meanwhile, ill health was forcing the retirement of Horace Gray, who had since 1881 occupied the Supreme Court’s “New England seat.” President William McKinley had virtually promised the post to a Boston lawyer named Alfred Hemenway, but by the time Gray finally stepped down, McKinley had been assassinated and the appointment belonged to Theodore Roosevelt.

A historian, a biographer, and an omnivorous reader, TR knew Holmes’s writings well and greatly respected his intellectual capacity. As a war veteran (or at least a soldier who had experienced a battle) he also admired Holmes’s combat record. However, Roosevelt thought he detected in Holmes’s Marshall speech an inability to understand that fitness for the Supreme Court required the candidate to be, as he told Henry Cabot Lodge, a cousin of Holmes who was pushing the nomination, “a party man, a constructive statesman, constantly keeping in mind his adherence to the principles and policies under which this nation has been built up and in accordance with which it must go on; and keeping in mind also his relations with his fellow statesmen who in other branches of the government are striving in cooperation with him to advance the ends of government.”

Was Holmes, Roosevelt wondered, “in entire sympathy with our views” on the status of Puerto Rico and the Philippines? “I should hold myself as guilty of an irreparable wrong to the nation if I should put in [the vacancy] any man who was not absolutely sane and sound on the great national policies for which we stand in public life.” Lodge reassured Roosevelt, and Holmes proceeded to Oyster Bay for a final interview, “under bonds for secrecy,” as he wrote to his friend Nina Lyman Gray. “I dodged the reporters as the president was off for the day on his yacht and I suppose they were not on the lookout. When I got there the servant said he would not be back to dinner but the children dined at 7:00.

“With some hesitation I titivated and came down at 7 to be received by a little Velazquez girl [Ethel, Roosevelt’s younger daughter] who curtsey’d and then proceeded to play the hostess with a delighted mixture of child and grown up. To us entered a little boy of about the same size and quality [probably her brother Kermit]. They explained their regrets that their elder brother [Theodore, Jr.] could not appear as he was not feeling quite right having eaten an apple pie and a half.

“Presently they discovered that I had been in the Civil War and asked me to tell my adventures. So, I told them tales adapted to their years and gathered afterwards that I gave satisfaction.

“After dinner came a telegram that the pres’dt was stuck in a fog and would not get back till morning. I was to remain. …

“In the morning between 9 and 10 the president and Mrs. Roosevelt came up very amiable. I had a little talk with him in which he said just the right things and impressed me far more than I had expected …”

The talk dissolved all doubts, and Roosevelt sent Holmes to his destiny.

Unlike Story and Holmes, Brandeis and Frankfurter reached the Court because each had a solid (and, in Frankfurter’s case, long-standing and intimate) working political relation with the appointing president.

An enormously successful practice had given Brandeis the financial independence to become “the People’s Attorney,” handling a series of public-interest cases involving railroads, insurance companies, and savings-bank life insurance. In 1910, he had participated in the explosive Senate committee hearings investigating Secretary of the Interior Richard Ballinger’s mishandling of rich Alaskan coal lands. The affair had made Brandeis a national figure, not least because he had caught President William Howard Taft in a clumsy and embarrassing lie and brought it loudly to the public’s attention.

Two years later, when the Democrats nominated Woodrow Wilson, Brandeis assumed a significant campaign role, advising Wilson, furnishing what today would be called position papers, making speeches all over the Northeast, and writing articles and even editorials for the vigorously anti-Taft Collier’s Weekly.

The victorious Wilson did not make Brandeis his Attorney General, but he continued to rely on his acumen and political ability to bring about the program that came to be called the New Freedom. Appointment to the Supreme Court seemed an eventual certainty, although no Jew had ever joined it, or even come close since 1852, when President Millard Fillmore vainly offered a seat to Judah P. Benjamin, who preferred to remain a senator from Louisiana.

On January 28, 1916, Wilson announced Brandeis’s nomination and ignited an unprecedented battle. The idea of thwarting a President’s choice was hardly novel; out of 97 nominations to that time, 31 had died in the Senate. Never, however, had a confirmation fight blazed this hot and for this long—almost six months. Never had one involved such intense, variegated social, political, and professional confrontation.

In his devotion to bettering society, Brandeis had often confronted powerful interests represented by conservative lawyers. Unfortunately his tact had not always matched his zeal. On one notable occasion, asked how he could represent two apparently conflicting parties, Brandeis had suavely replied, “I should say I was counsel to the situation.” The legal establishment took this kind of behavior hard. Harvard’s president, A. Lawrence Lowell, and numerous Boston lawyers signed a petition opposing the nomination, and seven former American Bar Association presidents came out against Brandeis.

The Senate Judiciary Subcommittee heard testimony pro and con that ultimately ran to more than one thousand transcript pages. Witnesses testified for and against the nomination, but the nominee himself, conforming to the practice of the time, never appeared before the senators. His partner Edward McClennen moved temporarily to Washington to direct the fight there; another partner, George Nutter, coordinated operations in Boston. Brandeis, however, remained the dominant mind: planning strategy, writing to supporters, and lobbying key senators.

In the hearings, the Boston lawyer Moorfield Storey, a great friend of Holmes, told the subcommittee of Brandeis’s reputation: “an able lawyer, very energetic, ruthless in the attainment of his objects, not scrupulous in the methods he adopts, and not to be trusted. … There is a radical lack of confidence in him among a representative class of men in the community in which I live, and which has existed for a good while.” Anti-Semitism plainly played a part in the controversy; some prominent Jews, concerned lest the dispute nourish bigotry, even asked Wilson to withdraw the nomination. On the other hand, Harvard’s president emeritus Charles W. Eliot wrote strongly in support. Said Edward McClennen: “Next to a letter from God, we have got the best.”

Watching from the sidelines, Holmes thought the nomination “a misfortune for the Court because whichever way it went half the world would think the less of the Court thereafter.” Nonetheless, when finally the Senate confirmed Brandeis, on June 1, Holmes telegraphed him one word, “Welcome,” and puckishly wrote to his friend Lady Castletown that he was looking forward to the mixture of “spiritual opinions” that would result from a judicial lineup including a Jew and two Catholics. In fact, although Brandeis went on to one of the most distinguished careers of any justice, fully warranting Wilson’s trust (“I never signed any commission with such satisfaction as I signed his”), the aura of anti-Semitism pervaded even the Court’s conference room. James McReynolds, Wilson’s first Supreme Court appointment, consistently snubbed Brandeis and would not even sign the letter the other justices wrote him when he retired in 1939.

After joining the Court, Brandeis managed to maintain his close ties with the youthful progressive professors and lawyers who were sustaining through the twenties the ferment that reached fruition in the New Deal. “Isaiah,” the young people called him, as they came to him for counsel and encouragement. Indeed, despite Brandeis’ insistence on “the judicial proprieties” and the consequent need to isolate himself from the political world, he managed an astounding amount of indirect influence. For many years he subsidized Frankfurter’s publication of articles on matters that particularly interested Brandeis.

Brandeis retired in February 1939. Two weeks before he left, another justice from Massachusetts, also a Jew, came on the Court. Brandeis had advised Wilson on economics and progressivism; Felix Frankfurter had for a decade served Governor and President Franklin D. Roosevelt in confidence and with influence. The two enjoyed, as Max Freedman, the editor of their correspondence, wrote, “a friendship based upon ideas, upon a shared philosophy of public life, upon similar convictions of social justice and world order.”

From the beginning of Roosevelt’s presidency, his relationship with Frankfurter attracted journalistic and scholarly attention. Particularly in the early days commentators tended to ascribe Svengalian powers to the diminutive professor. Even friends like the leftist political scientist Harold Laski acknowledged that “Felix was made to have a big field in which to play” and that, as Holmes affectionately noted, he possessed “an unimaginable gift for wiggling in wherever he wants to.”

With the coming of the New Deal, Frankfurter seemed able to extend these characteristics to his students. Many of the brightest young Harvard Law School graduates ended up working for—and often directing—one or another of the new agencies. To FDR’s critics, it seemed as if “Frankfurter’s Happy Hot Dogs” ran the country. Actually, Frankfurter was merely continuing what he had been doing ever since he started teaching at Harvard in 1914: steering promising youngsters into public service.

Their correspondence shows that Roosevelt felt comfortable consulting Frankfurter on any subject, foreign or domestic, and that the professor gave counsel with similar ease. If Frankfurter was not Roosevelt’s alter ego, or even his most trusted adviser, he was certainly as close to FDR on a personal and intellectual level as anyone in the administration. Frankfurter even turned down an appointment to the Massachusetts Supreme Judicial Court in 1932 so that he could remain free to work for Roosevelt’s election. All that, together with Frankfurter’s nationally recognized legal brilliance, made it certain that Roosevelt would someday put him on the Court.

The issue of what FDR called Frankfurter’s “race” troubled the president. Both Brandeis and Holmes’s successor, Justice Benjamin Cardozo, were Jewish. Growing indications of an increased domestic anti-Semitism, coming against the background of the Nazi persecutions, caused some prominent American Jews to ask Roosevelt, as their predecessors had asked Wilson, to forgo elevating Frankfurter, lest the appointment stimulate the bigots.

Whatever his slight doubts, on January 5, 1939, FDR named Frankfurter to succeed Cardozo. The New York Times called the appointment “one of the most popular” Roosevelt ever made. “I think Felix’s nomination has pleased me more than anybody else in the country,” FDR wrote to Laski.

To this point, the Senate had never required a Supreme Court nominee to attend his own confirmation hearing, much less to answer questions in the manner so familiar today. The subcommittee broke precedent and summoned Frankfurter. Some anti-Roosevelt members, notably Senator Patrick McCarran of Nevada, hoped to embarrass Frankfurter by suggesting that he had embraced communism or socialism. The nominee turned witch hunters into quarry.

Establishing the principle—now almost a truism—that he would not answer questions about his views on matters the Court might have to consider, Frankfurter fielded all inquiries and made a few of his own.

McCarran asked if Frankfurter agreed with Harold Laski’s “doctrine.” The transcript picks up the story:

FRANKFURTER: That implies he has a doctrine.

McCARRAN: Do you know whether or not he has a doctrine?

FRANKFURTER: I assume he has more than one. All people have.

[Merriment.]

McCARRAN: If you have read this small volume [Laski’s Communism], you can surely answer whether you subscribe to the doctrine?

FRANKFURTER: Have you read the book?

McCARRAN: I have just casually glanced at it.

FRANKFURTER: What would you say is its doctrine?

McCARRAN: The doctrine is the advocacy of communism. FRANKFURTER: You see, we could debate all day on whether that is in fact the doctrine of the book.

McCARRAN: Do you believe in the doctrine set forth in this book?

FRANKFURTER: I cannot answer, because I do not know what you regard as the doctrine. You have never read it.

Finally, the chair, Sen. Matthew Neely of West Virginia, put the question McCarran had been skirting:

“Are you a Communist, or have you ever been one?”

“I have never been and 1 am not now,” Frankfurter replied.

McCarran could not resist the temptation:

“By that do you mean that you have never been enrolled as a member of the Communist party?”

“I mean much more than that,” said Frankfurter. “I mean that I have never been enrolled, and have never been qualified to be enrolled, because that does not represent my view of life, nor my view of government.”

Dean Acheson, who served as Frankfurter’s counsel during the proceedings, described the reaction:

“A great roar came from that crowded room. People shouted, cheered, stood on chairs, and waved. The Chairman, banging his gavel, was inaudible. Every time the uproar would begin to quiet, someone would start it up again.”

Not every subsequent judicial nominee, no matter how congenial to the appointing president, has gone through the senatorial inquisition in such triumph. After Frankfurter’s hearing the Senate came to insist on a personal appearance, particularly before confirming a Supreme Court nomination. The bruising confrontations of recent times are only a historically inescapable development. The growth of the news media that Brandeis understood so well now brings into the popular arena a process that in the time of Story and Holmes gave partly to the Senate and entirely to the president the power to raise the pillars of the political fabric.

Of course, the fabric will, so far as the president can make certain, remain of a pattern he finds philosophically pleasing. The Supreme Court is, as Frankfurter was fond of saying, a court. Since the days of Story’s great chief, John Marshall, it has also been the umpire of the federal system, administering the complex checks and balances between executive and legislature, between state and nation, and, in the area of human rights, between government and individual. When appointing the umpire, a president understandably seeks someone who shares his definition of the strike zone.

That definition is necessarily political, taking politics as merely the practical working out of one’s deepest beliefs about our system and what it should accomplish. The president’s vision will sometimes collide with the Senate’s advise-and-consent powers—and also with the public’s own accurate perception of the Supreme Court as a political body.

As the media bring the process to the citizen’s direct attention in a manner hardly imaginable to Story or even to Holmes, the individual comes to affect the criteria by which president and Senate measure the fitness and suitability of every candidate for the Court. Today, the president and Senate must consider not only how the prospective justice will vote but also about how those votes will affect the votes the rest of us cast. Now we all participate in the political process of filling the Supreme Court.