The Brandeis Model: An Examination of Presidential Relationships with Supreme
Court Justices from Washington and Jay to Obama and Garland
An Honors Thesis Submitted to the Department of Politics in partial fulfillment of
the Honors Program
by
Joshua I. Luger
April 21, 2016
Table of Contents
Chapter 1.
Introduction
1
I. Theory and Literature
Chapter 2.
Constitution and Federalist Papers
5
Chapter 3.
Going Public
8
Chapter 4
The Politics President’s Make
10
Chapter 5.
George Washington
11
Chapter 6.
Abraham Lincoln
21
Chapter 7.
Lyndon B. Johnson
25
Chapter 8.
Richard Nixon
37
Chapter 9.
William Howard Taft
46
Chapter 10.
Charles Evans Hughes
54
Chapter 11.
Louis Brandeis
63
Chapter 12.
Felix Frankfurter
68
Chapter 13.
Earl Warren
73
II. Presidents
III. Justices
IV. Conclusion
Chapter 14.
Final Thoughts
84
Chapter 15.
Conclusion
87
Chapter 16.
Merrick Garland
96
Bibliography
100
Chapter 1 Introduction
The U.S. Supreme Court has reshaped American society and politics.1 This Court which
is the least democratic institution in the American Democracy, is widely misunderstood, few
people can properly identify all of the justices, let alone explain how they got there.2 Today, the
Court is composed of nine justices appointed to their posts by the President with the advice and
consent of the Senate.3 After the President makes his selection, the Senate Judiciary Committee
holds hearings to determine the qualifications of this person. Once the nominee passes this
committee, the full Senate has the opportunity to vote to confirm or deny this nominee.
Traditionally, the nominee would not even appear before the committee during these hearings.
Today, the nominee is subjected to intensely politicized hearings as senators scrutinize
everything they have ever written or said. Similarly, today in the press and online many interest
groups weigh in on the nominees credentials beyond the formal testimony. The confirmation
process for all judges in the federal judiciary, not just the Supreme Court Justices, appoints the
judge for life to a position that is very difficult to remove someone from. Once confirmed,
today’s justices generally disconnect from the world of politics. However, just as the twenty-four
hour news cycle is a modern development so is the hermit like lives of justices. But, this has not
1
Cases such as, Marbury v. Madison, Dred Scott v. Sanford, Brown vs. Board of Education, Gideon v.
Wainwright, Miranda v. Arizona, Roe v. Wade, and Bush v. Gore.
28% of Americans think that a 5-4 decision by the Supreme Court is sent to Congress for the final
decision. Only 32% of college educated Americans could identify the Court as one of the three branches
of the federal government. According to polling done by Annenberg Public Policy Center, and the
Constitution center, http://blog.constitutioncenter.org/2016/02/surveys-many-americans-know-littleabout-the-supreme-court/
2
3
The modern Supreme Court usually has nine Justices, eight Associate Justices and one Chief Justice.
During the writing of this paper, and at the time of the final draft due to the unexpected death of Justice
Scalia, there are only eight sitting justices. The number of justices has varied over time based on
legislation from Congress.
!1
always been the case. Justices like Chief Justice John Jay and Chief Justice Charles Evans
Hughes played very public political roles which made them well known and respected beyond
the Court. Today, for example it seems impossible that a former President could be appointed to
this “non political” branch, but President Warren G. Harding appointed ex-President William
Howard Taft in 1921. This branch of government sits in a unique, insulated position without
elections or campaigning. The Judicial branch, while reviewing the actions of the other two
branches, is thought to need minimal contact with the other branches. This is also a shift as those
selected to be justices has also shifted from notable political elites to mostly esteemed judges and
legal scholars.
The American constitutional system requires a precise mix of checks and balances in
addition to cross branch cooperation in order to function. Overtime, personal relationships
between Supreme Court Justices and Presidents have changed, as have popular views of the
propriety of such friendships. While some relationships such as those between President George
Washington and Chief Justice Jay or President Franklin D. Roosevelt and Justice Felix
Frankfurter have appeared to fit a cooperative model of the Constitution, others such as President
Lyndon B. Johnson and Justice Abe Fortas, have appeared somewhat corrupt. This research seeks
to understand the unexplored history of these extremely important personal relationships. The
types of people nominated has also changed, from senators, former presidents, and key
administration officials to proven judges and legal scholars, often with clear political leanings. Is
there a type of relationship between Presidents and Supreme Court Justices that either enhances
or hinders their work? How do such relationships fit into existing theories of presidential
leadership? This research will focus on relationships between presidents and Supreme Court
!2
nominees and justices, anecdotally and normatively. In a world where the Supreme Court has
become increasingly relevant and present in the political arena, it is important to understand this
evolving history. 4
This paper will start by discussing the creation of the Court and its role through the
Constitution and Federalist Papers. It will then discuss theories of presidential power. The next
section will cover Presidents Washington, Abraham Lincoln, Lyndon Johnson, and Richard
Nixon and their relationships with both specific justices and the Court as a whole. These
presidents represent transformative political periods and exemplary relationships with the Court.
Each of these Presidents also help to illuminate the connections between relationships and
Stephen Skowronek’s theory of presidential leadership, highlighted by different political eras and
dynasties. The next section focuses on justices that stand out for their notable relationships or
particular tenures on the Court. The section on justices will focus on the justice’s relationship
with multiple presidents throughout their career. The conclusion will discuss overall successes
and failures of president-justice relationships and analyze general trends, as well as provide
anecdotes and examples of these trends not explicitly covered in the previous chapters. Finally, I
will seek to explain the ideal model of presidential relationships with the Supreme Court
accounting for American constitutional theory and theories of presidential power.
In addition to the constitution and Federalist Papers, the research that follows relies
heavily on primary sources, most notably presidential and judicial memoirs, personal papers,
phone conversations, public speeches, and other first hand resources found in archives of
Presidential libraries and the National Archives. Secondary sources including books and articles
4
This research’s importance is only amplified by the current Supreme Court vacancy.
!3
that lay out theories of presidential power and judicial selections will also be present throughout
this paper. This research will try to determine the role Presidential relationships with Justices
play in the grand scheme of the American constitutional system. Overall showing that
relationships between justices and presidents play a significant role in the selection process of
justices and when kept relatively independent are not a violation of separation of powers.
President justice relationships can be split into two categories a Washington model and a
post Johnson Model. In the Washington model, the justice is chosen for political purposes, their
close proximity to the president, and their notoriety. In this model the politics behind choosing a
justice come down to politics in its purest form, their selections furthered the president’s power
and ideals and satisfied politic needs of the president. Their close proximity to the president
whether directly or through similar social circles plays a role in their appointment and also their
time on the Court is marked by further pursuing relationships. Justices in this category are also
chosen for their notoriety and more often than not have very public careers in politics before
joining the Court. The other model, the post Johnson model, the president justice relationship is
often not a factor in their selection. While the careers of these justices are also notable it is
almost entirely contained within the legal community and when nominated they are not already
household names. The only similarity is that they may be chosen to satisfy political needs of the
president and as a representation of the presidents political philosophy. The ideal justice from
both models and that embodies in many ways the best of the Washington model is Justice Louis
Brandeis.
!4
I. Theory and Literature
Chapter 2 Constitution and Federalist Papers
To understand the intentions behind the Constitution and the design of the American
system, the Federalist Papers, contain the reasoning, arguments, and dreams of Alexander
Hamilton, James Madison, and John Jay, and to some degree the will of the members of the
Constitutional Congress. To contextualize the relationships in question and their role within this
system, certain essays stand out. especially those that deal with the Judiciary as well as those that
examine both separation of powers and checks and balances. The specific papers analyzed
include 47, 51, 78.
In 47, Madison notes that the system of separation of powers does not prohibit
interactions between the branches;
From these facts, by which Montesquieu was guided, it may clearly be inferred
that, in saying "There can be no liberty where the legislative and executive
powers are united in the same person, or body of magistrates,'' or, "if the power of
judging be not separated from the legislative and executive powers,'' he did not
mean that these departments ought to have no Partial Agency in, or no control
over, the acts of each other. His meaning, as his own words import, and still more
conclusively as illustrated by the example in his eye, can amount to no more than
this, that where the whole power of one department is exercised by the same
hands which possess the whole power of another department, the fundamental
principles of a free constitution are subverted.5
Here, Madison makes it clear that the executive, judiciary, and legislative duties and
bodies of government must be separate branches of government, and not be contained within the
same political actor or body. Madison suggests that while branches must be able to work
together when needed, the relationships ideally would not be so close as to override any unbiased
5
James Madison, Federalist No. 47, 30 January 1788
!5
checks of power. The relationship between a justice and president must not influence the Justice
so much that they rule a case to be constitutionally sound as a favor or when they believe it is not
faithful to the law. But importantly, Madison does allow for “Partial Agency,” thus giving room
for connections between these separate branches. In this Madison opens the door for
relationships.
In 51, Madison elaborates on this ideal, while also complicating the appointment process:
In order to lay a due foundation for that separate and distinct exercise of the
different powers of government, which to a certain extent is admitted on all hands
to be essential to the preservation of liberty, it is evident that each department
should have a will of its own; and consequently should be so constituted that the
members of each should have as little agency as possible in the appointment of
the members of the others. 6
While this statement seems to restrain the appointment process of judges by the president,
Madison is emphasizing the necessity for independence amongst the actors within the different
branches of government. Regarding appointments he suggests the least agency possible. Tyranny
risks a role less in the appointment process but instead in the control over the power exercised by
a different branch. The risk of tyranny arrives if a President objects to a Court ruling and without
due process fired each of the Justices and replaced them with his personal lawyers. The design of
the Constitution prevents tyranny by including the different branches in selecting and appointing
justices. Madison warned against allowing the president to appoint his associates unilaterally. To
the Founders, tyranny was power in the hands of the very few. Political relationships would
violate the founders wishes if a President exerted too much influence over someone he appointed
to the Supreme Court. A later portion of 51 describes the need for complete independence among
the different branches’ actors.
6
Federalist No. 51, James Madison, February 6, 1788
!6
It is equally evident, that the members of each department should be as little
dependent as possible on those of the others, for the emoluments annexed to their
offices. Were the executive magistrate, or the judges, not independent of the
legislature in this particular, their independence in every other would be merely
nominal.7
Madison describes that the system is designed to guarantee independence in action. No
one department is able to exercise complete power over anything, with this check in place it is
harder for personal relationships to dissolve the separation of powers established.
In 78, Hamilton explains why the founders viewed the Judiciary as the least dangerous
branch, since it had relatively little power. Since the judiciary can neither affect spending or
enforcement of laws without having a case brought to them, this branch would have the tougher
time gaining power and taking liberty away at will.
The judiciary, on the contrary, has no influence over either the sword or the purse;
no direction either of the strength or of the wealth of the society; and can take no
active resolution whatever. It may truly be said to have neither force nor will, but
merely judgment; and must ultimately depend upon the aid of the executive arm
even for the efficacy of its judgments.8
While there is little need to fear this branch, that does not mean it is incapable of usurping
power. The fear is not of what the Judiciary can do on its own, but rather of what the Judiciary
can do if it were to team up with the Executive. The Federalists see a potential for tyranny
through relationships between the President and Supreme Court Justices.
It equally proves, that though individual oppression may now and then proceed
from the courts of justice, the general liberty of the people can never be
endangered from that quarter; I mean so long as the judiciary remains truly
distinct from both the legislature and the Executive. For I agree, that "there is no
liberty, if the power of judging be not separated from the legislative and executive
powers.” And it proves, in the last place, that as liberty can have nothing to fear
7
Federalist No. 51, James Madison, February 6, 1788
8
Federalist No. 78, Alexander Hamilton, May 28, 1788
!7
from the judiciary alone, but would have every thing to fear from its union with
either of the other departments; that as all the effects of such a union must ensue
from a dependence of the former on the latter, notwithstanding a nominal and
apparent separation; that as, from the natural feebleness of the judiciary, it is in
continual jeopardy of being overpowered, awed, or influenced by its co-ordinate
branches; and that as nothing can contribute so much to its firmness and
independence as permanency in office, this quality may therefore be justly
regarded as an indispensable ingredient in its constitution, and, in a great measure,
as the citadel of the public justice and the public security.9
Hamilton suggests here the dangers of relationships that are too close and compromising.
Relationships such as these could dominate the Court’s composition and contribute to the
tyranny feared by the Federalists. Judicial appointments being lifetime appointments furthers this
fear as tyrannical behavior is not as easy to correct through elections in this branch.
The Federalists never approached these questions head on, but they contextualize
the ideals behind the system the relationships will play a role in. These writings suggest that the
ideal relationships between Presidents and Justices would be that of cordial coworkers. The
Founders would have been happy with Presidents and Justices who knew each other and had a
good working relationship. Their fear of tyranny is only present when the president justice
relationship defeats independence, and nullifies checks and balances. The Founders approved of
Presidents appointing Jurists they respect and knew, but not personal lawyers.
Chapter 3 Going Public
Samuel Kernell’s theory of the presidential strategy, Going Public, which describes the
use of the press and planned leaks of information as a tool the president uses to win public
support and leverage bargaining position with Congress. This strategy can be applied to president
justice relationships in many different ways. One way this strategy could be utilized is by using it
9
Federalist No. 78, Alexander Hamilton, May 28, 1788
!8
to defuse any concerns the public or the Senate could have about a judicial nominee’s
relationship to the president before the hearing actually takes place. In this scenario the president
would hold a press conference or release a statement discussing their relationship with their the
nominee and why the individual’s character makes them a good choice. Going public
preemptively with the relationship helps avoid any appearance of impropriety. The president can
also use this strategy in order to publicly announce his preference for how the Court should
decide a case.
Leaking information is another strategy a president could use based on Kernell’s theory
in order to sway the American people to get his or her preferred justice on the Court. The
president could leak out a short list of very radical names that would never make it through the
Senate, thereby when he announces the actual nominee, the nomination appears much more
reasonable and makes for a smoother confirmation process. In today’s political climate,
especially that surrounding nominees to the court, this seems like the most likely and potentially
most successful use of Kernell’s strategy.
Presidents can also discuss their preference for a nominee without naming specific names
by discussing specific qualifications. This makes their eventual selection seem like a good
nominee since the president has already articulated his preferences for nominees with certain
qualifications. A good example of this is President Nixon’s appointment of Chief Justice Warren
Burger. Nixon often referred to the need to appoint “law and order Judges” to help realign the
criminal justice system with conservative values after years of liberal decisions from the Warren
Court. When it came time to replace Chief Justice Earl Warren, Nixon labeled Warren Burger as
a “law and order Judge”making it seem that he had stayed true to his promise. Today,
!9
presidential candidates are often asked throughout the campaign about the kinds of judges they
would appoint to the Court, which allows for them to describe their preferences. If they are
elected these preferences resurface when they nominate someone to the Court.
Chapter 4 The Politics President’s Make
Stephen Skowronek’s book The Politics President’s Make; Leadership from John Adams
to Bill Clinton, covers many aspects of Presidential Power theory. To this research the most
important aspects are the designations given to different Presidents, through these designations,
this thesis will explore how the actions characterized by the different characterizations of
Presidents impact their relationships with and selections of Justices. To a large extent this theory
can only be helpful in a tangental means because the supreme court is rarely addressed in this
theory focused more on legislation and other Presidential actions. The three characterizations are
politics of Reconstruction, Articulation, and Disjunction. Politics of Reconstruction come when a
President of a different party from the previous President dramatically change American politics
and thereby America through their radical new actions. These Presidents wield extraordinary
power and inspire generations of leaders to follow. Presidents of Reconstruction include two
prominent examples studied here, Lincoln and FDR. Politics of Articulation focus on Presidents
who carry on the legacy of a reconstructor President, the ultimate articulator is President Lyndon
B. Johnson who in many ways helps complete the dream of FDR’s administration. This helps
characterize his actions. Finally Presidents who are part of the Politics of Disjunction include
Jimmy Carter, these are Presidents who fall in a long line of Articulators but come from the other
party and represent a political response to the dynastic policies of the previous Reconstructor and
their articulators. While the actions of Presidents concerning Justices will not always match their
!10
Skowronek distinction, this can help outline different themes and practices. This partially comes
from the fact that with the Supreme Court, any President who has a nomination has the chance to
drastically change the makeup of the Court and leave a legacy that gives them a momentary
presence similar to that of the Presidencies of Reconstruction. Keeping this in mind, President’s
who are articulators following this theory will in many cases hope to emulate the nominations
and relationships of their Reconstructor and Presidents of disjunction will hope to nominate
Justices who are in direct opposition of those nominated by the previous administrations. On
another hand, Skrownek’s theory also deals with the political climates and eras the Presidents
operate in. This background very much helped contextualize much the research about the
different Presidents and their approach to nominating Justices and keeping relationships or
building relationships with those on the Court. For instance, due to the politics of their day
President Roosevelt is much more likely to cultivate relationships with Justices over a post
Watergate President in a time of public distrust and political scrutiny of government. While this
theory does not dominate the research explored throughout this paper, it definitely helped shape
much of the research and understanding of the Presidents and the way they used their power as
President.
!11
II. Presidents
Chapter 5. George Washington
It is hard to overstate George Washington’s importance in American history. He led the
fledgling nation during the Revolutionary war and was the clear choice to be president. As the
first president, Washington was aware that every decision he made would be used as precedent.10
The Supreme Court, being the most ambiguously described branch in the constitution had a
heavy burden of not only playing a crucial role in the young government but also had to lay the
groundwork for future courts. Luckily for the Court, the justices were not alone in this endeavor,
they had the benefit of the Judiciary Act of 1789 which began to describe and allocate their
power. Furthermore, the Court was able to take a certain amount of direction from Washington.
The first Court was filled with interesting anecdotes that create a foundation for future
relationships between justices and presidents as well as creating norms for the Court.
To a large extent President Washington had complete discretion for choosing the first
justices, with Article Three of the Constitution providing no clear qualifications for potential
nominees. The criteria a president sets out for selecting nominees can tell a lot about their
philosophy of the role of the Court and its relationship to the president. For President
Washington, his selections were especially important as they would set the tone for the Court and
its members. In a letter he sent to the first seven Justices, Washington stated that “The Judicial
system is the chief Pillar on which our National Government must rest.” 11 Through this
statement, Washington endowed the Court with a sense of importance and suggested his view of
“History has Its Eyes on You”, Hamilton: The Musical. Miranda, Lin Manuel. "The Official Page For
The Music of Hamilton: The Musical." The Official Page For The Music of Hamilton: The Musical. N.p.,
n.d. Web. 11 Jan. 2016.
10
11
Friedman, Leon, and Fred L. Israel. 1969. The justices of the United States Supreme Court, 1789-1969,
their lives and major opinions. New York: Chelsea House in association with Bowker. p. 111
!12
the Court’s role. This view can be better understood by his criteria for selecting justices.
Washington’s criteria as explained and organized by Henry J. Abraham in his book, Justices,
Presidents and Senators. The criteria not only makes logical sense for choosing the first Supreme
Court but suggests a great deal about the importance of political relationships with George
Washington. Washington’s Criteria were,
(1) support and advocacy of the Constitution; (2) distinguished service in the
Revolution; (3) active participation in the political life of state or nation; (4)
prior judicial experience on lower tribunals, or at least litigation experience
thereupon; (5) either a “favorable reputation with his fellows” or personal ties
with Washington himself; (6) geographic suitability; (7) “love of our
country.”12
These criteria almost all contain implications of the necessity for political connections and
relationships to the President. A majority of the biggest supporters and advocates of the
constitution are going to be people at the Constitutional convention who were there with
Washington, or would most likely have close ties with people at the convention and therefore a
connection to Washington.13 Distinguished service in the revolution would very much suggest
that if you do not at least know Washington yourself you know people high enough in the
command structure that there is minimal separation between you and the President. With a
smaller number of political elites in a smaller number of states with a total population of only
3.83 million people14 being an active participant in political life of one’s state would provide a
number of connections to Washington or those within his inner circle. Furthermore active
12
Abraham, Henry Julian. 2008. Justices, presidents, and senators: a history of the U.S. Supreme Court
appointments from Washington to Bush II. Lanham: Rowman & Littlefield Publishers. p. 57
13
Seven of Washington’s appointee’s to the bench were present at the constitutional convention.
14
"1790 Overview - History - U.S. Census Bureau". Census.gov. N.p., 2016. Web. 11 Jan. 2016.
!13
participation in politics at a national level at the time would almost guarantee that the person
would be on Washington’s radar if not already a friend. The final two criteria are the exceptions
to the rule of relations, however both make sense for creating a new institution within a new
nation, these criteria are those of geographical suitability and patriotism. While each of these
criteria give a different opportunity for a nominee to have a connection to Washington, many
nominees being already close to Washington would easily satisfy many of these criteria.
John Jay, the President’s choice for Chief Justice is the perfect example of Washington’s
criteria. Not only had Jay been involved in the war and the Continental Congress, but he had also
already proved his patriotism by serving in other posts such as the Minister to Spain. As the
negotiator of the Treaty of Paris, Jay had proven himself as an leader of the new judiciary.
Representing the importance of close political and working relationships at the time, the Chief
Justiceship is not the first position within the new government Washington offers Jay.
Washington first offered Jay the position of Secretary of State, a cabinet post that would work
much closer with Washington as a key advisor, but Jay turned down this position. Jay, however,
was not completely convinced of the importance of the Court. His call to service was not fully
selfless, according to a letter from the Secretary of the Senate, Jay waited to see which would
pay more, Secretary of State or Chief Justice, before ultimately taking the position of Chief
Justice.15
John Jay is the perfect precedent for future extra curricular appointments and
responsibilities taken on by future justices, while also clarifying that this is not the business of
the Court. In the summer of 1793, Washington sends a letter containing a list of questions he
15
Schwartz, B. (1993). A history of the Supreme Court. New York: Oxford University Press. p. 17
!14
wanted the Justices to answer. Instead of answers, Washington received a letter detailing how
this was a violation of the separation of power according to the Justices. The Court explained that
they regret that this may be an embarrassment for Washington but that, “the Power given by the
Constitution to the President of calling on the Heads of Departments for opinions, seems to have
been purposely as well as expressly limited to executive Departments.”16 The Justices explain to
the president that they planned on answering only strict issues within legal suits rather than just
advising the President on executive action. This shows a clear distinction between what
Washington hoped for in the relationship between the Court and the Presidency as opposed to
what Jay, Wilson, Iredell, Blair, and Paterson hoped for. Under Washington’s view the Court and
the President would have an open dialogue and would be able to serve as key advisors on
executive action to clarify the constitutionality of decisions before they were made, which in the
end could help avoid constitutional battles making it to the Supreme Court as legal controversies.
According to this school of thought, Washington’s criteria perfectly picked Justices that would be
able to advise the President in the way he would value. By picking justices that already had some
sort of rapport with the President, it would make these requests easier and the President would
have a different level of confidence in the answers he received knowing that the justices already
have his respect and values similar to his. This relationship would also be precedent for future
situations such as Lyndon Johnson’s relationship with Fortas. Examples such as Fortas moving
into the White House for two days to advice the President during race riots in Detroit as well as
16
The Papers of George Washington, Presidential Series, vol. 13, 1 June–31 August 1793, ed. Christine
Sternberg Patrick. Charlottesville: University of Virginia Press, 2007, pp. 392–393.
!15
phone conversations with the Justice about Vietnam strategy rather than pending constitutional
cases fit the model Washington tried to create through this letter.17
Jay and the other justices disagreed that the Court should hand out advisory opinions. The
justices instead established themselves as primarily a legal institution. One reason why the
justices might have made this distinction is to establish a steady workload for the Court. During
the early years of the Court, the justices were both bored and unhappy with little work on their
docket. DeWitt Clinton, a prominent politician at the time who would go on to be both a Senator
and Governor of New York, explained that the first Court had no business stating, “The Supreme
Court of the U. States is now in session and has done no other business than admitting a few
Counsellors and making a few rules.” 18 For this reason, one could understand why the early
Justices would declare that their role is not an advisory one but rather to deal only with litigation
as they would rather have controversies arise giving them work than nipping them in the bud by
answering the President’s requests. Further they touch on the ideal of separation of powers in
their letter. This is important as it would have been easy for the Court to disappear as a
completely separate branch of government and dissolve into an arm of the Executive. This was
fresh in the mind of many of the justices signing onto this letter as per Washington’s criteria they
were recently involved in the revolution and drafting of the Constitution and therefore knew all
to well the fears of an all too powerful executive. Furthermore, as seen through Justice Jay’s
dilemma over taking the position of Chief Justice as well as his successor, John Rutledge’s
eventual resignation from the Court in order to become the Chief Justice of the South Carolina
17Abe
Fortas phone call with President Johnson on Jan 26, 1966 (WH6601.11) http://millercenter.org/
presidentialrecordings/lbj-wh6601.11-9535
18
Marcus, Maeva, and James R. Perry. 1985. The Documentary history of the Supreme Court of the
United States, 1789-1800. New York: Columbia University Press. p 692
!16
Court of Common Pleas, the justices were clearly worried about whether or not this Court was
really as important as Washington had suggested in his letter to each justice upon their
appointment.19 To these Justices it is important to distinguish themselves as a crucial separate
branch of government that does more than advise the President on questions the Secretary of
State has posed so that they can give their position purpose and importance.
While these reasons prove to be compatible with the goals of the justices on the Court at
the time, they also fall into direct conflict with actions taken later by John Jay. John Jay used the
letter discussed earlier to declare his independence from the Executive Branch, only to later take
on extra appointments from other branches of Government on top of his post as Chief Justice.
The most notable example of Jay ignoring separation of powers and demeaning the importance
of his position as Chief Justice is his acceptance in 1794 of the position of Special Ambassador
to England through which he negotiated the Jay Treaty. Scholar Bernard Schwartz comments that
“These extra Judicial appointments had an inevitable negative effect upon he prestige of the
fledgling Court.”20 The relative importance of the Supreme Court is further burdened by
Washington’s first Chief when while away he is nominated to be Governor of New York, a
position he later resigns to take and that one New York paper at the time dubs a “promotion.”21
While imperially these strange extrajudicial roles and later his resignation seem strange, they
represent important precedent that plays a key role in future relationships between Presidents and
Justices that will play key roles in cases to be explored later in this study. One obvious parallel is
Justice Robert H. Jackson being appointed the United States lead prosecutor in the Nuremberg
19
Schwartz, A History of the Supreme Court p. 27
20
Schwartz A History of the Supreme Court. p. 27
21
Marcus The Documentary History of the Supreme Court of the United States, 1789-1800. p. 759
!17
Trials following the Second World War. In both cases a member of the top court is sent to lead a
very important international affair that with both dramatically effect the United States and the
rest of the World. Both can be seen as commentary on the relative importance of the Court,
however they point in two different directions. For Jay it is easier to read his absence from the
Court as downplaying the importance of the work of the Supreme Court as he was bored of the
lack of work and took on other more fulfilling roles. With Jackson, his selection for a concurrent
appointment comes from his prestige and incomparable experience as one of the top prosecutors
and jurists in the country at the time which lead to his nomination to the bench. Jay’s use of the
bench as a political launching pad provides a even more precedent for future justices. While in
2016, being named Chief Justice is seen as more of a final stop during one’s legal or political
career, Chief Justice Jay uses this position to land other jobs that at the time were deemed more
prestige such as the governorship of New York. Charles Evans Hughes who leaves the
Governorship of New York to serve on the Court only to leave to eventually become Secretary of
State and then ultimately returning to the Court as Chief Justice. President Lyndon Johnson also
uses this move as precedent when moving the chess pieces that end up being the Abe Fortas
scandal. President Johnson convinces Arthur Goldberg to leave the Court to take the position of
Ambassador to the United Nations telling him that this path would eventually lead to the Vice
Presidency. Though the evidence suggests Jay did not enjoy his role as Chief Justice, his
decisions to separate the position from Presidential advisor and decisions to use this position to
gain more political roles including some much closer to the President such as Special
Ambassador to England plays a key role in the future of the relationships between justices,
presidents, and politics.
!18
John Jay also provides an interesting representation of both sides of relationship between
the Court and the White House due to his personal relationship with the President. As explained
earlier Jay is the ideal candidate under Washington’s criteria for justice, a lot of this comes down
to the relationship between the two men. If the Jay Washington relationship followed by all
Presidents and Chief Justices, then the appointment of Abe Fortas would have been the perfect
selection for Johnson’s Chief Justice, as Jay and Washington wrote to each other on a fairly
regular bases dating back to the revolution and not ceasing once in office. When looking through
the personal diary of President Washington, John Jay appears as a regular companion for walks,
tea, meetings, and social functions. This close relationship and use as a personal advisor seems to
go against the model suggested by Jay’s rejection of formally helping Washington, but might
serve instead as the true Washingtonian model. This would be a more nuanced complex
relationship between branches of government. In this model, the courts do not formally advise
the President as that would be to them a violation of the separation of powers as outlined in the
Constitution, however this does not prevent individual political actors and office holders from
playing key roles as advisors to one another. Formally, the Justices cannot tell Washington what
is or is not constitutional but an individual Justice can serve personally as an advisor and friend
beyond their official capacity.
Washington and Jay were not the only exchanging letters at this time. The justices were
very unhappy with a major part of their job and they wanted a presidential fix immediately. Their
complaint had nothing to do with the lack of cases before the Supreme Court. Instead their
complaint was with “riding circuit.” Before there were circuit court judges to hear the appeals
cases from each region, the justices had to travel to individually assigned regions. This was the
!19
least favorite aspect of the job for all of the justices, and easily the most frequent complaint in
the form of letters to the president. In February of 1792 Justice Cushing outlined his complaints
in a letter laying out exactly how long it took him to travel and the hardship he had to endure just
to carry out his judicial duty.22 Justice Samuel Chase also sent a letter declaring “a permanent
system should not impose such hardship on any officer of Government.”23 In 1791 Justice Iredell
complained, “I will venture to say no judge can conscientiously undertake to ride the Southern
Circuit constantly, and perform the other parts of his duty… I rode upon the last Circuit 1900
miles: the distance from here and back again is 1800.24” John Jay cited this burden when he
resigned saying that he was “Seven Months of the Year from his family.”25 Justice Thomas
Johnson spent only a year a on the Court out of fear that he was wasting more than half of every
year in the few years he could have left with his family, riding circuit.26 These complaints finally
lead to change by Congress in 1793, while the system wasn't totally changed and fixed, enough
was done to satisfy the justices. The use of writing the President, their friends, family, and
Congressmen, shows that even once on the Court when they separate themselves from advising
the president and congress, the justices still are able to use their office to render favors for
themselves. Much of Washington’s relationship with the Supreme Court became complaints,
either that they did not have enough to do due to the lack of cases, or that the work they did have
was too burdensome. It is understandable that they would write about the fact that their job was
22Schwartz A History
of the Supreme Court. p. 18
23
Schwartz A History of the Supreme Court. p. 18
24
Schwartz A History of the Supreme Court. p. 20
25Schwartz A History
of the Supreme Court.p. 19
26
Schwartz A History of the Supreme Court. p. 19
!20
too dangerous and trying, but this may have been corrected sooner had they been willing to
publicly advise the president in other areas.
Chapter 6. Abraham Lincoln
Abraham Lincoln, while not blessed with a unified nation, had three open seats on the
Supreme Court upon his inauguration. Two Justices had died and one had defected to go lead the
Judiciary for the Confederacy.27 As a former lawyer Lincoln valued the Court and envisioned its
role as a partner in the nation’s preservation, a view that very much guided his approach to
relationships with Justices and his five appointments. This view of unification also played a key
role in his criteria for his nominees. Lincoln, wanted nominees who were anti-slavery, proUnion, conservative, and would not alienate the southern states completely.28 As he was picking
his nominees personally and had fairly strict requirements of these nominees it is easy to see a
strong preference for Justices with whom he had a personal relationship.
The strategy in his choices is brilliant, not for the Justices he put on the bench but the
symbolism of their appointments. The amount of thought put into a relatively less powerful
institution not only in the 1800s but especially at a time when the country was breaking in two,
backs up the personal nature with which President Lincoln approached the Court. His first
nominee was Justice Noah H. Swayne, born a southerner, had freed his slaves and moved north
as well as fitting the pro union and conservative bills perfectly. Furthermore, by replacing an
Ohio Justice with a current Ohio resident represented a thank you to the Ohio republicans that
were key in his election.29 With his next appointment the President knowingly set aside two
27
Justices Daniel and McLean had passed away, while Justice Campbell resigned to join the confederacy.
28
Abraham 94
29
Abraham 94
!21
nominees he had a personal relationship with, a Senator and Secretary of Interior, for a southern
born Republican living in Iowa who represented a geographic diversification of the Court.3031
The selection of Samuel Freemen Miller did not fully represent an abandonment of his reliance
on relationships as 129 of 140 members of Congress and all but four senators signed a petition
urging the the President to nominate Miller.32 By selecting someone closer to the newer
territories and someone so unanimously loved and admired, Lincoln used this nomination again
for personal benefit to help build and keep political unity when possible.
After pleasing the political elites, he had more political capital for his third selection and
was able to return to his preference for justices he knew. The short list here included the
Republican Senator of Illinois, Browning, Judge Thomas Drummond and Judge David Davis.
His entire short list, as just mentioned, were government officials from Lincoln’s home state of
Illinois, showing his preference for those with whom he had a relationship. This ideal is only
furthered by the fact that Lincoln chose Davis, who he undoubtably was closest with. Davis and
Lincoln first met when Lincoln argued cases in front of him as a lawyer in Illinois. Davis went
on to be Lincoln’s campaign manager playing an integral role in electing him President of the
United States. The nomination of Justice Davis represents an extreme case where the President
nominates a Judge with whom he has not only argued before but someone who was key in
getting the President nominated and elected. It is safe to say that they relationship was far
beyond a simply professional political one but was a deeply personal one. While it would be easy
to see this nomination and be appalled by the level at which these men were connected, Justice
30
Abraham 94
31
Sen. Orville Browning and Sec. Caleb Smith
32
Abraham 95
!22
Davis did not go on to have a necessarily corrupt tenure on the Court and further did not vote
always with Lincoln whispering in his ear. In the key Civil War case Ex parte Milligan (1866)
Davis writes for the Court limiting presidential authority and President Lincoln’s use of military
courts rather than trying a civilian in a Civilian court.33 Chief Justice Chase, as well as Justices
Swayne and Miller vote in favor of their nominating President’s actions, while Davis is joined by
fellow Lincoln appointee Stephen Field. This decision comes after Lincoln’s death but still is a
key ruling for his legacy and on a major use (or abuse) of presidential power. Had Lincoln been
alive, his trust in his Justices, especially the one who got him to the presidency would have led
him to expect a different decision, still authored by Davis. For this reason, President Lincoln was
successful in nominating strong Justices who were appointed for but not corrupted by their
personal relationships.34
Lincoln’s next appointment Stephen Field reached across the aisle but remained true to
his nomination of pro-war pro-Union judges. Field also brought in geographic diversity to the
Court as he was an appointment from the growing recent state of California where he had served
as Chief Justice. Justice Field today is best known for his pioneering of ideas supporting
Substantive Due Process in the 14th Amendment. While Field played a key role on the Court in
the final years of the Civil War and early years of Reconstruction, he also represents one of many
Justices who did not let their political appointment stunt his political career.35 He made multiple
33
Civilians cannot be tried by presidentially created military commissions when the civil courts are still
in operation, "Ex parte Milligan." Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Mar 6, 2016.
https://www.oyez.org/cases/1850-1900/71us2
Davis’ time on the Court is also significant as he was bored by the appellate work and briefly runs for
President.
34
35
Clouatre, Doug. 2010. Presidents and their justices. Lanham, Md: University Press of America. p. 63
!23
failed attempts to become the Democratic nominee for President while remaining a sitting
Justice, speaking volumes to the political climate of the day allowing political elites of any and
all positions open opportunities to run for the highest office of the land while not always giving
up their current posts. While not an obvious choice of Lincoln’s Field is remembered as an
incredibly influential Justice brought to the Court for geographic and political diversity, while
still remaining conservative and pro-Union. “Stephen Field prove to be on of Lincoln’s and the
Court’s most influential Justices. Thirty years after the President’s assassination, Field remained
an influence on the law, expressing views that would dominate the Court until the Franklin
Roosevelt Administration.”36 Interestingly he was the tenth Justice on the Court until the Court
was later reduced from ten justices to eight.
President Lincoln’s final nominee was Salmon Chase. Chase represents a Justice that
follows Lincoln’s model of strong anti-slavery advocates and someone with close political and
personal ties to the President. Chase became a Republican because of the issue of slavery and
became a national figure in the Free Soil Movement. Chase was among the many candidates for
President at the 1860 Republican Convention and was rumored to have traded his delegates to
Lincoln for a cabinet post.37 Chase became Lincoln’s Treasury Secretary. While this and the
considerable control over policy Lincoln gave Chase would suggest a close and loyal
partnership, their relationship proved much more complicated. Chase even challenged Lincoln at
the 1864 Presidential nominating convention. He tried multiple times to resign but was always
convinced otherwise by the President.38 However, tired of his constant challenges Lincoln
36
Clouatre 65
37
Clouatre 65
38
Clouatre 65
!24
replaced Chase after being renominated by the Republican party. To complicate things further,
Lincoln valued his alliance so promised him the Chief Justiceship upon Taney’s death. As the
Chief Justice during Reconstruction, Chase also was one of the few Chief Justices to oversee
impeachment hearings of the President during the Andrew Johnson Trials.
President Lincoln had great influence over the Court during his time as president. In
most of these cases he sought justices who he had a personal connection with, most likely
because of the strong rivalry between Justice Taney and President Lincoln. While Taney sought
to fight the President, the President sought through his appointments to make the Court an ally in
rebuilding the nation, knowing it would play a large role in reconstruction. Lincoln, much like
Washington had very unique circumstances during his Presidency that played a key role in his
selections and views of the Court. To this end it is somewhat surprising to see his eventual
promotion of the unfaithful Chase to Chief Justice, but this represents that while throughout his
selections a close relationship played a key role, he was willing and able to look past
relationships to the need of the Court and truly believed Chase’s support was necessary enough
to give him the position. One of the most difficult aspects of reflecting on Lincoln’s nominations
is that to a certain extent we cannot see how their relationships progressed after nominations and
throughout his Presidency, as his Presidency was cut short. His rocky relationship with Taney
and being saddled with a hostile Chief Justice, informed his choices including putting one of his
closest political allies, Justice Davis on the Court. Lincoln also represents how these
relationships and how the Court can be used for political benefits beyond simply Judges who
vote a certain way, as the justices were strategically chosen for the roles they could play in
reunification after the war. Lincoln should serve as a model in his selection process looking for
!25
specific qualities and often favoring relationships but also looking for geographic diversity and
even at times political diversity (within reason). Even before the Court rose to the level of
prominence it has today, Lincoln recognized its importance the role it could play in government
if those on the Court possessed the correct political relationships and ability.
Chapter 7. Lyndon B. Johnson
Lyndon B. Johnson is known for his incredible success passing legislation, such as the Civil
Rights Act, Voting Rights Act, and Great Society legislation, as well as his mishandling of the
war in Vietnam. Johnson’s personality is remembered by political historians as commanding and
providing enough of an incentive to make other leaders bend to his will. At his core, Johnson’s
rare leadership abilities and political intellect were a product of his ability to cultivate
relationships. Johnson relied on friendships that he developed for years in order to convince
others to do what he wanted while believing they were doing what they wanted. President
Johnson’s political intellect developed as his relationships did, the more he knew about a person,
the more he could manipulate them. Finally, Johnson was a President with a plan. His aides often
say his legislative success came form years of thought and planning, so that when Kennedy was
assassinated, the newly sworn in President Johnson immediately formed his plan and got to
work. President Kennedy, in Skowronek’s theory of Presidential power, does not rein in a new
political dynasty, rather he is the legacy of President Roosevelt. Skowronek comments on the
similarity between the leadership styles, political acumen of both Johnson and Roosevelt.39
While he acknowledged that his plans for the Great Society were intended to expand the reach
39
Skowronek, Stephen. 1993. The Politics Presidents Make: Leadership from John Adams to George
Bush. Cambridge, Mass: Belknap Press. p 27
!26
and successes of the New Deal, his actions certainly makes one think he is a Reconstructor.40 All
this can be see through his work with the Supreme Court over the course of his Presidency,
starting immediately and lasting through his final days in office. During his time as President,
President Johnson built and maintained close ties with many of the Justices, he manipulated one
of his closest alleys and friends onto the court, made one of the most historic appointments, and
one of the most historic mistakes leaving two seats empty at the end of his term.
President Johnson, the master planner and manipulator had been developing important
relationships long before Kennedy was assassinated or even chose him as his Vice President.
Going back to his time in the Senate and the House, letters between the future President and
sitting Justices were common. Whether it was an invitation to ceremony, social gathering,
meeting or conference, once he assumed office President Johnson was no stranger to the sitting
Justices. Writing the then Congressman Johnson, Chief Justice Warren invited him to a summer
judicial conference at the Supreme Court when most of DC was on vacation, inviting him to see
the speeches and network with some of the most influential judges and lawyers in the United
States. Congressman Johnson cordially writes back expressing his disappointment that he is
already back in Texas and unable to come to the conference in DC but expressing interest the
event.41 This relationship does not disappear but only grows and by the time Johnson needs the
Chief Justice to serve as the chairman of the Kennedy Assassination Commission, he is able to
use this relationship and turn Warren’s answer from a no to a yes. As President, he continues this
relationship with an annual state dinner honoring Warren, Vice President Humphrey and the
40A Skowronek
41
term for a President who changes the political paradigm.
Earl Warren to the President, White House Famous Names, Earl Warren, WHCF, LBJ Library
!27
Speaker of the House. This relationship goes so deep that noted in the President’s daily diary
kept by the staff to keep track of the President’s schedules and meetings, Chief Justice Warren is
noted as spending time in the White House pool with Johnson and Justice Fortas. While the
common narrative of Johnson’s Presidency is his use of these relationships for his political gain,
a simple look through his personal papers and daily schedules suggests that the President also put
in his fair share of work cultivating these important relationships. Another example of the
cultivation of friendship can be seen through LBJ’s correspondence with Justice William O.
Douglas. Douglas, a lover of the outdoors, wrote the President often about his hikes around the
world.42 In fact he often invites the President or First Lady on hikes in the Washington area.
While the responding letters show very few examples of the President or Lady Bird accepting
these invitations, they always further the discussion and inquire further about the interests of the
Justice and his family. 43 An admirer of President Franklin Roosevelt and progressive supporter of
the Civil rights movement, Johnson knew the importance of the Court and knew these
relationships would play key roles in the change he was trying to create. To this end, these letters
nearly never mention specific cases before the Court. While his phone calls and meetings show
that he has clear plans and goals, the many letters about hiking, birthday messages, and social
invitations, show a genuine interest in building friendships with those in other branches of
government. This highlights the importance of these relationships. Johnson accomplishing major
reform passing bills on everything from voting rights, to the environment, to education and more,
William O Douglas to the President, White House Famous Names, William O Douglas, WHCF, LBJ
Library
42
43
Multiple letters in the Douglas Famous Names file
!28
probably could have never been as successful if he had ignored these key political actors or only
used his powers to intimidate rather than to cultivate and persuade as well.
President Johnson’s success can also be seen through his use of another power strategy,
promoting and rewarding those close to him. This can be seen in three prime examples connected
to his time on the Court, Goldberg, Fortas, and Marshall. From the moment he took office,
President Johnson had a plan for the Court and put it into place. This plan began the day
Kennedy was shot, when among the first phone calls Johnson made that day was to Justice
Arthur Goldberg. Goldberg had a relationship with Johnson as he had been in Kennedy’s cabinet
as Secretary of Labor before being appointed to the Court. Through this working relationship,
President Johnson knew that Goldberg was ambitious and saw himself eventually climbing to the
Vice Presidency. Although Johnson was not going to make Goldberg Vice President, he used this
to lure him off the Court in the guise of rewarding him with a promotion. During that first phone
call, Johnson accepts his sympathy and speaks with his wife, but more importantly lays the
foundation for Goldberg’s future moves by telling him how important he will be to the new
administration and how he needs Goldberg’s knowledge to help him. He gets Goldberg to write
sections of his first speech later that week to a joint session of Congress. In the speech Goldberg
writes sections on foreign policy, which Johnson calls him later that day to tell him how well the
Goldberg sections were received.44 Johnson suggested that his talents could be better utilized in
foreign policy and that other positions besides the Court were better ladders to the Vice
Presidency, Johnson quickly lured him off the Court to appoint him the U.S. Permanent
Representative to the United Nations. Through this position Goldberg goes from a junior
44
President Johnson phone conversation with Arthur Goldberg on Nov 27, 1963 (K6311.03)
http://millercenter.org/presidentialrecordings/lbj-k6311.03-36
!29
member of the Court to a key foreign policy advisor and actor for the new President. More
importantly, this move opened up a spot for LBJ’s ultimate goal, a seat on the Supreme Court for
his close friend, the prominent lawyer Abe Fortas.
Justice Fortas provides one of the most compelling cases in this study, the rise and fall of
his career also point to a very significant moment for the overall trend of relationships between
presidents and justices. As seen so far it has been almost universally accepted that a president
and justice would or could have a longstanding friendship and connection prior to appointment,
this norm however was taken a step too far with Justice Fortas, in the end drastically challenging
the notion that a justice and president having a close relationship is not only expected but seen as
benign. Justice Fortas’s relationship with President Johnson dates back to a crucial moment in
Johnson’s run for Congress in Texas where Fortas found a way in which votes cast by dead
citizens could pass as legal.45 From this moment on Johnson began to trust Fortas and their
relationship grew as Johnson seemed to put more and more trust in his friend. This meant that
when he was eventually elected to the Senate, Fortas started approving language for public
statements and eventually became a key speech writer and advisor for the rising politician. 46
Once he took the oath of office, Johnson’s reliance on Fortas only grew. In the first week of his
Presidency, Johnson asks many people to help him draft his first address to Congress. With each
speechwriter, including Justice Goldberg. Once he reviews the many drafts from prominent law
makers all thinking they are writing the only draft, Johnson picks his favorite sections and gives
them to his soon to be Vice President Hubert Humphrey and his soon to be Justice Abe Fortas.
Murphy, Bruce Allen. 1988. Fortas: The Rise and Ruin of a Supreme Court Justice. New York: W.
Morrow. p. 91
45
46
Murphy p. 128
!30
Fortas and Humphrey spent the night before the speech writing until two in the morning to script
what becomes an important and historic presidential moment. Fortas’ role as chief advisor
continues in many other instances that mirror this one. In fact, many close aides say that
especially at the beginning of his presidency all major decisions were to be approved by Abe
Fortas. Fortas is so burdened by unofficial work from the President that he essentially stops
taking cases as a lawyer, but did not stop using his role to benefit his already existing clients.47
Fortas in fact seemed happy with his unofficial role helping to run the country and when offered
a spot on the Supreme Court originally turned it down. 48
President Johnson used relationships to fuel his masterful political plans, and looking at
the events of his presidency it is clear that a main goal of his was to put Abe Fortas on the
Supreme Court, whether he wanted it or not. After orchestrating Justice Goldberg’s transition to
Ambassador, President Johnson goes to his top lawyer and most loyal friend to offer him a seat
on the most prestigious bench in the country. When Fortas declined the offer, he is summoned to
the White House where he met with Johnson in the Oval Office who told him, I am having a
press conference to announce you as my nominee for the open seat on the Court, you have two
options you can stay in my office or come to your Press Conference.49 In one of the best
examples of his leadership style, the President never asked Fortas if he wanted this position,
knowing his answer, but instead insisted that he will have this position.
While unorthodox in his approach to creating an opening for his friend and then ignoring
Fortas’ desire not to nominate him, this episode does not yet explain how their relationship
47
Murphy p. 129
48 Abraham.
49
p. 224
Murphy p. 129
!31
would forever change the appointment process and relationship between these two branches of
government. The more surprising facts of this episode which later became a presidential scandal,
are that at least for this nomination he was a generally agreed upon choice and none of the
players involved were unhappy. Justice Goldberg while forced out of office stating he would
have liked to stay longer, gained more access to the President and became a key foreign policy
advisor and actor. Fortas himself was lauded as such a good fit for the Court that when he is
nominated for Chief Justice later, many of the other Justices applaud this nomination. For
example, Justice William O. Douglas wrote the President saying “I hope you make Abe our new
chief. He’s be superb.” 50 The scandalous piece of their relationship went beyond putting a old
friend on the Court, Lincoln and others had shown this was not an end all, however the real
scandal was the fact that Johnson and Fortas still failed to see the boundaries created by his
appointment to the Branch.
Naming a close friend and advisor to the Court was perfectly reasonable constitutional
move, and in fact is usually the assumed move of a president.51 This was one of the many
reasons why Abe Fortas, especially in the 1960s was not a surprising or unethical nominee. In
terms of presidential power theory, it is easy to see why a President would name someone they
know intimately to a position that often becomes one of the President’s biggest legacies. The
problem here is not the relationship but the nature of it. While the Constitution does not lay out
the boundaries that will define the separation of powers between the branches of government,
just the idea of a separation. Precedent starting with John Jay shows that a relationship does not
William O Douglas to the President, White House Famous Names, William O Douglas, WHCF, LBJ
Library
50
51
Within days of Justice Scalia’s death people who were naming possible Obama nominees often cited his
Attorney General Loretta Lynch.
!32
need to be destroyed or ignored, but John Jay, a frequent visitor of Washington’s, draws the line
at publicly shaping the President’s policy decisions while on the bench. This is a line that Fortas
crosses many times and more egregiously.
Even once he is named to the Court, Fortas continued to be a frequent guest at the White
House and was scattered over the President’s call sheet. It was not uncommon for him to be seen
many times a week and even multiple times a day on the Presidents call sheet and it was rare to
find an event or meeting at the White House that includes another Justice where Fortas was not
present.52 Listening to phone calls between Fortas and Johnson sound less like a President
speaking with a Justice and more like the President talking with his Chief of Staff. On January 26
1966, for example, just months after assuming his spot on the Court, the President and Justice
Fortas discuss intricate details of his Vietnam Strategy.53At no point in this call do they discuss
the legality of this or any cases before the Supreme Court. To some this may point to the
President and Justice trying to avoid any issues corruption having the President interfere with his
position as a Justice. Instead, it comes off as the Justice ignoring his responsibilities of his new
job and failing to give up the power he had before his appointment, going beyond the boundaries
of his appointment. Justice Fortas can be seen doing many things other Justices had done through
their appointments and relationships with presidents before, like suggesting people for posts
throughout the Government, similar to how Justice Frankfurter filled the New Deal
Administrations for Roosevelt. However, the way it was discussed with Fortas in the documents,
suggests that he knew more than a casual advisor, or even most close advisors. In a note for the
52Information
pertaining to the common interactions between the President and Justice were gathered by
reading the daily dairy interaction cards, sorted by names of Political Elite’s in the LBJ Library Archives.
53
Abe Fortas phone conversation with President Johnson on Jan 26, 1966 (WH6601.11) http://
millercenter.org/presidentialrecordings/lbj-wh6601.11-9535
!33
President left by an aide he was advised by his Justice, “Justice Fortas called to leave the
following note for you in connection with the Fred Benson Matter: Might consider George
Edwards who is 53 years old— a Judge of the US Court of Appeals for the 6th Circuit, appoint in
1963 I think by Kennedy.” 54
One of the best, often over looked example of their relationship failing to know
boundaries comes in the form of a phone call between the President and his soon to be nominee
for the highest Court in the land.55 While there are no official requirements to be a Justice, one
that is often mentioned for all political offices and especially the position of judge is that one
most be of exemplary moral character. The following phone call shows a man in power who
believed that he and the President can do no wrong. On the night of March 13, 1964 Abe Fortas
phoned the President to inform him that he was out dancing and had met some girls, he then
encouraged the President to join them. Fortas said “I’m looking at a very beautiful lady in Red,
and we’ve decided that you should come dancing.” To which the President laughed and informed
him that he was very busy, only to hear his next pick for the Supreme Court reply with “there is
nothing more important than this woman.” 56 The President then preceded to talk with the
woman who still tried to convince him to sneak off from the White House for a night of fun.
Beyond the inappropriate behavior of the President’s closest advisor and friend encouraging him
to join in his affair and sneak off from his duties at the White House, the phone call was made
even more alarming when the woman identifies herself as Charlotte Brooks. Mrs. Brooks was the
54
Memo, Secretary (MJDR) to the President, 8/7/67 Confidential File Box 34, LBJ Library.
Noted as overlooked because this conversation was not found in any of the existing literature used and
searched while researching.
55
56
President Johnson phone conversation with Abe Fortas on Mar 13, 1964 (WH6403.10) http://
millercenter.org/presidentialrecordings/lbj-wh6403.10-2507
!34
wife of a Texas Congressman Jack Brooks, who would later go on to sit on the House Committee
on the Judiciary. While this phone call only suggested Fortas had an affair with the wife of a
Congressman and that he tried to encourage the President to do the same, it is very illuminating
considering the fact that he would soon still be chosen as a Supreme Court Justice.
Though this incident occurred before his nomination, Fortas continued this behavior
while a justice. While on the Court as seen above he not only continued to serve as the
President’s senior advisor but also his personal lawyer. Justice Fortas’ acts continued to defy the
norm when during the 1967 Race Riots in Detroit he temporarily moved into the White House in
order to advise the President. The folly of this relationship came down to the lack of boundaries
seen at many points, and the fact that their close friendship and the debt Johnson felt he owed to
Fortas blinded him from the unethical behavior of his friend.
Towards the end of his Presidency, Chief Justice Earl Warren decided that in order to
secure a future court that would uphold his legacy he would step down and let President Johnson
appoint a new Chief. While Earl Warren alerted the President on June 13, 1968 that he was ready
to step aside at “at your leisure.”57 President Johnson wasted no time announcing his choice for
Chief. Johnson chose his friend, advisor, lawyer, and justice, Fortas. This doomed Johnson and
Fortas for the rest of their careers. As soon as the nomination battle began, Fortas’ financial deals
that continued to pay him while on the Bench from previous clients as well as his past dealings
with Johnson became clearer and clearer, to the point that he was forced to resign completely
from the Court or face impeachment proceedings.58 This story followed the rise and fall of a
57 Abraham
58
p. 227
Abraham p. 227
!35
legal mind that everyone agreed was right for the Court, a President staying true to power theory
and appointing someone he could trust with his legacy, the downfall was the blindness to
unethical behavior that resulted from their intimate relationship.
Another example of Johnson promoting from within is that of Thurgood Marshall.
Marshall, the brilliant attorney who had won many civil rights victories for the African American
Community as one of the key strategists and lawyers behind the NAACP Legal Defense branch.
Marshall had already argued in front of the Court many times and was one of the most prominent
African American lawyers, if not the most. Johnson brilliantly aligns himself with Marshall and
cultivates a relationship with him over time that eventually led to Marshall becoming the first
African American Justice on the U.S. Supreme Court. While their relationship grew increasingly
close, Marshall was still among the most obvious appointments in Supreme Court history. As the
time had come to break the all white history of the Court, there was no other person alive who
would better fit that position. Some even said at the time that beyond being African American he
was the single most qualified person alive, and that few others had done more for the cause of
equality. Johnson will forever be remembered as the President who nominated Marshall because
of the relationship that he forged through meetings, phone calls, and other appointments leading
to this historic moment. On July 7, 1965, the President called Thurgood Marshall and offered
him the position of Solicitor General. In the conversation Johnson hinted that this position could
be a stepping stone to the Supreme Court. Johnson added the caveat that he hated to tease
Marshall like this and did not want to. 59 He then further built their relationship relying on his
advice as the Solicitor General often bringing him to the White House for meetings with Civil
59
President Johnson phone conversation with Thurgood Marshall on Jul 07, 1965 (WH6507.01)
http://millercenter.org/presidentialrecordings/lbj-wh6507.01-8307
!36
Rights leaders and asking his counsel on other appointments. During a phone call in January
1966, Johnson solicited his advice on individuals for other government posts, while he also
hinted that he wanted to appoint Marshall to the Court.60 When he eventually had an opening on
the Court, Marshall was at this time not only the obvious choice but also fit the bill of a close
ally, something that seemed to be required for a high level appointment from President Johnson.
After President Johnson’s Fortas faux-pas, the nomination of a close personal friend
became a near anomaly and when attempted often met with scorn. But Fortas does not totally
disprove the positives of nominating close friends. The lesson from this is that even a President
can ignore reality when it comes to friends. This shows not that friends of the President should
be rejected outright from the Court but that their friendship should be analyzed. If the friendship
will not allow them to uphold separation of powers, just as Johnson and Fortas saw nothing
improper about his continued role as an advisor, then the nomination is an unethical one, but
when the relationship simply can justify the nomination as deserving and shows knowledge of
the nominee’s believes and character, it should not be discouraged. Because of President
Johnson’s unending desire to appoint Fortas as Chief Justice, he left office with two open spots
on the Court including the Chief Justiceship.
Chapter 8. Richard Nixon
Richard Nixon’s relationship with the Supreme Court is an incredibly telling one that
explains and plays out many trends that represent previous adherence to theories explored in this
research and provides examples of how the theory will shift in the post-Johnson era. President
Nixon was given 4 nominees throughout his time as President, including two openings that were
60
President Johnson phone conversation with Thurgood Marshall on Jan 03, 1966 (WH6601.01)
http://millercenter.org/presidentialrecordings/lbj-wh6601.01-9403
!37
known at the beginning of his Presidency. Nixon’s desire for his judicial appointments was no
secret as he ran one of the most vocal presidential campaigns in American history in reference to
judicial and especially Supreme Court appointments.61 The future President, driven mad by
decisions made by the Warren Court, much like the President who forever regretted nominating
Chief Justice Warren, rallied the silent majority by making it clear what his Supreme Court
would do.
Nixon’s repeatedly stated criteria were to select “strict constructionists” who
would see “their duty as interpreting and not making law”; who would follow a
“properly conservative” course of judging that would, in particular, protect
society’s “peace forces” against the “criminal forces”; who would “see themselves
as caretakers of the Constitution and servants of the people, not super legislators
with a free hand to impose their social and political viewpoints upon the
American people.” 62
After running on a platform against in his view the liberal activist Warren Court, he is presented
with a gift that any President would dream of having, two nominations directly after a landslide
victory with plenty of political capital to spend. Nixon’s dream scenario virtually ends here.
President Nixon’s attitude toward personal friendships with Supreme Court Justices and
nominees plays out in ways that confirm previous theories and that respond directly to the
Johnson Fortas Scandal. In direct response to the overly personal connections between his
predecessor and his choice for the Chief Justice, President Nixon called the selection of Chief
Justice Warren Earl Burger “the most personal choice of [my] Presidency to date.”63 Interestingly
enough he then made this personal decision by restricting personal connections. President Nixon
61
It will be interesting to see that if the death of Justice Antonin Scalia right in the heat of Primary Season
will create a situation where the Supreme Court plays as prominent a role in the 2016 Presidential
Campaign as it did when Nixon ardently ran against specific decisions and Justices of the Warren Court.
62 Abraham
63
p. 235
Abraham p. 237
!38
learning from precedent and creating an extreme version of the future norms, rules out “personal
and political friends.”64 To further prove himself as the antithesis of Johnson-Fortas, he insisted
on not clearing his nominee with any political leaders and in the most extreme of his measures
even refuses to meet with his nominee before announcing the nomination. In these decisions it is
clear that President Nixon was truly disgraced by the previous Supreme Court decisions and how
they were made. President Nixon here runs from Presidential power theory and overcorrects the
mistakes of his predecessors. In fact, even if a President were trying to prove their disconnection
from a particular nominee, the public would understand the need to meet with the nominee face
to face. When someone applies for a job with no obvious connections to his future employer, no
one screams nepotism after the person comes in for an interview, this comes off just as Nixon’s
paranoid actions that become even more clear after the Watergate scandal. This move also proves
the benefit of personal relationships, as Burger goes on to be a Chief Justice who in many ways
carries on the legacies of the Warren Court, rather than striking them down as President Nixon
had hoped. One wonders, if the President had chosen someone he was more familiar with if that
would have yielded a different result. Much like Warren his record to that point suggested that
Burger would most likely become the chief Nixon was looking for.
Nixon’s selection of Chief Justice Burger in many ways is not an act of power but a move
to protect his power. It was a move that played out as extremely reactionary, not only was he
extremely careful about the choice of Burger, but Burger’s nomination was confirmed easily. He
was voted out of the Democratically controlled Judiciary committee after being the only witness
to testify. After being voted out of committee 13-0 in just an hour and a half, mere days later he
64
Louisville Courier Journal, May 23, 1969, p A1
!39
was confirmed with a 74 to 3 vote. 23 were absent or did not record a vote and the three Senators
voting against did not do so for lack of qualifications on the part of the nominee. 65 Not all of President Nixon’s appointments had an easy confirmation and not all of his
appointments represented clearly that Nixon had really learned anything from the unsuccessful
Fortas promotion. In fact his first choice nominee to replace Fortas, Judge Clement Haynsworth
had a variety of problematic financial disclosures. Nixon’s control of the country after an
election that rang in a clear displeasure with the previous lineage of Presidents failed to pull the
nomination of his first choice Justice resulting in a 55 to 45 vote in the Senate that represented
the first failed nomination that received a full vote in the Senate since Herbert Hoovers
nomination of John J. Parker that was rejected by the Senate. In a job where political capital, and
with it, ability to implement one’s agenda is dependent not only on public approval but public
confidence, having to rescind a political nomination is already seen as a large enough blow, let
alone watching your embattled nominee fail in vote on the Senate floor. Nixon did not blame
himself or his own popularity or power at all instead he claimed this embarrassing episode was
the result of “anti-Southern, anti-conservative, and anti-strict-constructionist” sentiments.66
Again, not learning from previous political defeats, President Nixon declared that he would
nominate another Southern strict-constructionist conservative Judge.
Nixon’s next choice was a spiteful one, and one that scholars looking back today often cite
as being aimed at teaching the Senate a lesson. In this decision and moment he acts as if he has
Eugene J McCarthy (D-MN), For what he termed “somewhat personal and political” reasons
(apparently Burger, when he was Minnesota State Republican chairman in 1952, had opposed McCarthy
reelection campaign for the House); Gaylord Nelson (D-Wis), who said he did not know enough about the
nominee and had been “mistaken” when he voted to confirm Fortas; and Steven M young (D-OH), who
claimed that the committee had not hear from an opposition witness. p. 237 Abraham
65
66
Abraham p. 11
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the persuasive power of President Johnson without actually following through with any of the
intimidating actions just relying on the respect for the Office itself being enough to bring his
nomination to fruition, clearly not learning from Judge Haynsworth. While in terms of action,
President Johnson seemed to be a President drunk with power believing that he could do no
wrong and pass any nominee or piece of his agenda without a hitch, Nixon stupidly ignored red
flags and protocol. In a vetting process by the FBI and White House that at best has been
described as superficial, Nixon nominated Judge G Harold Carswell. A simple search into
Carswell would have resulted in the discovery of his White Supremacist comments, although,
Justice Black was able to overcome that past and sit on the Court, and involvement in illegal use
of Federal funds to create a segregated country club while US Attorney in Florida. 67 All in all in
the world of the 24 hour news cycle, this name would not even make the long list, let alone by
nominated. In the post Fortas world and just after a failed confirmation, a President should not be
touching a nominee this toxic and yet Nixon arrogantly insisted he proceed. This decision lead to
a statement that should never be said about a presidential appointment on the Senate floor, not
because of respect, but because the President should have the forethought to nominate someone
so competent that this statement can never be read, “Even if he is mediocre there are a lot of
mediocre judges and people and lawyers. They are entitled to a little representation, aren't they,
and a little chance? We can’t have all Brandeises, Cardozos, and Frankfurters, and stuff like that
there.”68 This statement by the President’s floor manager of the nomination was met with support
in the form of another statement from a Democratic Senator from Louisiana,
67 Abraham
68
p. 11
Congressional Record, 91st Cong., 2nd sess., vo. 116, 1970, p 7498.
!41
Does it not seem to the Senator that we have had enough of those upside down
corkscrew thinkers? Would it not appear that it might be well to take a B Student
or a C Student who was able to think straight, compared to one of those A
Students who are capable of kind of thinking that winds up getting us a 100percent increase in crime in this country?69
These celebrations of mediocrity for one of the most intellectual positions available in the U.S.
Government, seemed to come from the popular political sentiment that a common average man
is the most electable especially to represent the average American. What the President’s
supporters failed to realize is that the Supreme Court is not about popular representation, it is the
least democratic branch. This was not an accident, this was a position as designed in the
Constitution and practiced throughout American history until this point for the brightest legal
thinkers and most practiced jurists and statesmen. Not surprisingly, President Nixon’s
unintelligent choice failed, 51 to 45, his second failed nominee in less than five months after all
previous presidents had been able to at least withdraw their nominees since the 1930s. To his
credit, Nixon admits defeat at this point giving a speech of consolation declaring his lack of
power in this arena. 70
After two bitter defeats, he turns to rely on relationships, not necessarily his but those of
the sitting Justices. Much as other Chief Justices were able to dictate their fellow Justices
nominations, Burger goes to his appointing President with a solution. Burger suggested his
childhood friend from Minnesota Harry Blackmun, a northern conservative judge who was an
easy win for a defeated President. With a quick quiet meeting with the President and the Attorney
69
Congressional Record, 91st Cong., 2nd sess., vo. 116, 1970, p 7487
70
After the Senate's action yesterday in rejecting Judge Carswell, I have reluctantly concluded that it is
not possible to get confirmation for the judge on the Supreme Court of any man who believes in the strict
construction of the Constitution as I do, if he happens to come from the South. New York Times, April 10,
1970 p 1.
!42
General, Blackmun was given the green light. Blackmun and Burger go on to be hailed as the
“Minnesota Twins” as the two form a consistent conservative voting block, just as Nixon had
envisioned. Unfortunately for Nixon, Blackmun not only grew to resent this representation of his
believes and saw his ideology shift during his tenure. This shift led to his authoring of the
majority opinion in Roe v. Wade, an opinion President Nixon did not appoint him to write.
The issue of Justice Blackmun’s change of heart brings up an interesting dilemma, while it
is hard to predict gradual changes of thought, one of the benefits of appointing someone who has
a longstanding relationship with the President is that the President is more likely guaranteed a
vote that will be a lasting legacy they approve of. In the absence of a relationship with
Blackmun, Nixon relies on the advice of his Chief Justice who had a longstanding relationship
with Blackmun. This however did not translate to a promised vote especially considering Nixon
publicly had no close relationship with Burger prior to his appointment. Nixon was instead
forced to take a chance on a man’s record and was ultimately left unhappy with the legacy of
Justice Blackman. In the 1970-71 term Justice Blackmon voted with the Chief Justice 109 of 113
cases and aligned himself with Justice Brennan, the Court’s leading liberal, only 13 percent of
the time. After he began to scorn the constant labeling in the press as an echo of his old friend
Burger’s voice and as his legal views began to shift, his voting changed drastically. His voting
record post his Roe decision switched from 13 percent with the liberal wing of the Court to 80
plus percent.71 Here relationships end up having the opposite effect from President Nixon’s
hopes, running from his close connections to the Chief, Blackmun’s vote helps continue the
decisions of the Warren Court rather than reversing it. If this was his reaction to being painted as
71
Abraham p. 243
!43
just an echo for Burger, one is left to ask if he would have run more quickly or possibly even
more dramatically had his relationship been with the President.
After the public failures Nixon endured through his first few appointments, the President
turned to another line of presidential strategy, Kernel’s Going Public. The President gave the
American Bar Association a list of 6 potential nominees. The six included Judge Mildred Lillie, a
California Appeals Court Judge, Herschel Friday, a close friend of the Attorney General, Sylvia
Bacon, who had only been a judge for seven months, Senator Robert Byrd, a former KKK
recruiter who had gone to night law school and hadn't yet been admitted to the bar, and Charles
Clark and Paul Roney, who combined had three years experience as judges. Interestingly enough
this list included 2 women, Judge Mildred Lillie and Judge Sylvia Bacon, Judge Lillie was the
President’s top choice for the Court.72 This list is also interesting especially being the list given
to the Bar association to be inevitably leaked to the press, as it is clear who Nixon’s real favorites
were. The two first names on his list including the first woman to be atop a short list for Justice,
were undeniably more qualified and passable than the rest. The use of going public here was
used very wisely to convince the public that the choices the President would eventually make
were the choices they would make themselves, making the President look smarter and more in
tune with popular opinion. This list was not well received as the Bar Association and the public
call the list a “relentless pursuit of mediocrity.”73 Whether or not this list was a ploy to gain
public favor or not, the President heard the calls for better names and answered with names that
were much more qualified. The first was Lewis Powell, a former President of the ABA and a
These two women, not named to the Court at this time, also appear on Regan’s short list when he
decides to nominate a woman to the Bench, but the suggestion of Sandra Day O’Connor by the Chief
Justice replaces them and wins out.
72
73
Abraham p 15
!44
southern strict constructionist. The second name he put forward was more controversial and a
lower level member of his administration, the eventual Chief Justice Rehnquist, who at the time
was an Assistant Attorney General at the Justice Department.74
President Nixon learned his lessons and in the wake of the Fortas scandal was denied any
appointments with clear relationships that tie the nominees back to him. He further failed in
trying to lower the elitist nature of the Court, in hopes of achieving his campaign promises of
common sense law and order judges, rather than justices who will ponder the many meanings
and interpretations of the Constitution. After the clear shift in the nomination process after
President Johnson, Nixon then normalized failing nominations and floating publicly many names
before arriving at his eventual nominees. But a question remains if this new model of publicly
testing names and ending up with relatively unknown legal scholars is the better one, or the right
one. In the case of President Nixon’s selections, it is clear that through this process the country
was given measurably better justices than the President would have appointed on his own. The
rejection of many unqualified cronies resulted in two well respected Chief Justices, Burger and
Rehnquist, Blackmun who is able to follow a Louis Brandeis model of independence, and Justice
Powell, who while not as historically notable certainly came more qualified and distinguished
than the infamous list of the Nixon Six. Nixon is the first President to nominate justices in the
post-Johnson era and saw firsthand how much the process had changed, the country in turn
gained notably different justices than Nixon would have nominated if he had beat Kennedy in
1960.
74
His is the first nomination the ACLU publicly fights
!45
III. Justices
Chapter 9. William Howard Taft
This research would not be complete without a discussion of William Howard Taft. Taft
occupies the unique position of having served both as a President and Chief Justice of the
Supreme Court. In fact Taft is the only president to serve on the Supreme Court, although as seen
here, many justices have tried to run for president either before their time on the Court or even
from the Bench. 75 The more interesting thing about Taft, and in many ways what sets him apart,
is the fact that he went from president to justice and that in his mind this was not a demotion. It
was widely known at the time, especially among political elites that President Taft longed for the
Chief Justiceship and he makes appointments with his likelihood of someday being Chief Justice
in mind. President Taft also serves as an interesting focal point as even when he was no longer
president and especially once he is Chief Justice, he commands great power and influence over
the makeup of the Court. Because of this, some have even suggested that he had as much
influence over the Court and was able to essentially select as many justices as Washington.76
Overall, Taft’s time as President and time on the Court were defined by the importance of
relationships with other justices.
Like many other presidents, Taft had important criteria for picking justices. He took these
appointments especially seriously as he both had been a judge previously, and argued as a lawyer
in front of the highest Court, as well as he envisioned himself one day on the Court, making
these selections even more personal. Interestingly enough, the fact that he took personal
In modern politics this is almost unthinkable, although President Obama would seem to have the
correct credentials as a former constitutional law professor, however given the current state of politics this
is probably extremely unlikely.
75
76
Abraham p. 131
!46
relationships so seriously and prioritized other aspects of the future justice, he had less interest in
their nominal political affiliations His criteria included a judge of character, that he knew them or
knew of them, and all except Hughes had considerable judicial experience.77 Since his focus was
on their experience and relationship to him, political affiliation was less of a concern, as in his
mind he just had to be able to work with them and more importantly they had to share his
judicial philosophy. Taft wanted justices who would be the opposite of Learned Hand, Brandeis,
and Cardozo who he believed were “destroyers of the Constitution.”78 Interestingly enough, as
someone who highly regarded the importance of an existing relationship between the President
and his Justices, Taft also strongly believed in the separation of powers, which could explain the
reason all of his friends on the court did not always vote the way he would have liked. To explain
this odd passion for both a relationship and separation of powers it is best to look at his career
prior to the Presidency. As an accomplished lawyer and judge, Taft understood and even
preferred the Judiciary to the Executive, he knew the freedom needed to have a strong and
successful legal system.
When his first opportunity to appoint a justice arose in 1909, Taft was quick to find
someone who met all of his criteria. Horace H. Lurton, who was a close friend who served along
side him as a Judge for eight years on what was known as the “Learned Sixth.”79 Taft had
previously advocated to President Teddy Roosevelt to appoint his friend to the Court, but was
blocked by Senator Henry Cabot Lodge, due to Lurton’s political affiliation as a Tennessee
Democrat who “had voted against the government in every case involving the interstate
77
Abraham p.131
78 Abraham
79
p.131
Abraham p.131
!47
commerce clause.”80 This did not matter to Roosevelt’s hand picked Republican successor
because politically, philosophically, and socially Taft liked and knew Lurton. Lurton would never
get to serve on the highest court with his friend from the appeals circuit as he died only four and
a half years after taking office, however to his credit, wrote 87 opinions in that short span,
proving him a worthy appointment by an old friend.
While Charles Evans Hughes will be discussed at length in his own section, it is
interesting to see the story from Taft’s perspective, especially the continued gamesmanship of the
Chief Justice position. Taft wanted Hughes on the Court and teased him with the potential that
the Chief spot would open soon and in his words, had it been open at the time he would have put
Hughes there. When it does open up shortly after appointing Hughes, Taft goes back on his word.
His reasoning was Hughes was too young and healthy. Taft dreamed of holding the Chief
Justiceship and many speculated that if he could he would appoint himself and resign the
Presidency. However, given that this was not possible he knew promoting Hughes would most
likely mean he would never have the opportunity for this position after his Presidency, so he
went back on his deal.81 In the end, after reaching the position himself, Taft urged Hughes to
return to the Court as his successor.
In nominating his actual choice for the Chief Justice, Taft creates new precedent,
promoting for the first time one of the sitting justices. In doing so Taft of course surprised
everyone by not promoting Hughes even leading to the New York Times Headline “White, Not
80 Abraham
81
p. 131
Abraham p.134
!48
Hughes, For Chief Justice.”82 In selecting White, makes an incredible selection for his own
ambition as the safe promotion passes away May 19 1921, shortly after Wilson, who would
never appoint Taft, leaves office. In this selection, while choosing someone with a much more
proven conservative record, Taft selected a justice with very Brandeisian characteristics as
Edward Douglass White’s time as both an associate and Chief Justice are often described as
following a cautiously independent and evaluative approach to the law. Taft even remarkably
declares his own ambition and sadness while appointing White saying,
There is nothing I would have loved more than being chief Justice of the United
States… I cannot help seeing irony in the fact that I, who desired that office so
much should now be signing the commission of another man… It seems strange
that one place in the government which I would have to liked to fill myself I am
forced to give to another.83
This speaks volumes about President Taft’s selection. This is one of the only times where not
only did the nominees record and relationship with the president but the ability for the president
to one day admittedly be able to replace him come into play. Furthermore, this has to be one of
the only times in American history where the President appoints someone to any position
expressing not only jealously but sadness that they themselves can not fill such a position. But
this shows incredibly well why relationships were more important to Taft than political affiliation
or really anything else. Because he desperately hoped and dreamed that one day he would serve
on the Court with all or most of his selections.
82The
New York Times,. (1912). WHITE, NOT HUGHES, FOR CHIEF JUSTICE, p. 1. Retrieved from
http://query.nytimes.com/gst/abstract.html?res=9F0CE2DC1638E333A25751C1A9649D946196D6CF#
83
As edited in Abraham 135, Originally found in Alpheus Thomas Mason, William Howard Taft: Chief
Justice (New York: Simon and Schuster, 1965) p 34
!49
In promoting for the first time a sitting justice, Taft also created another modern
phenomena, creating a new vacancy on the bench while filling a separate vacancy. Giving Taft
yet another opportunity to shape his beloved fantasy. In this case Taft did appoint a man who
eventually he would describe as a favorite colleague of his when the two served together on the
Court. Justice Van DeVanter becomes a famous member of the Court’s Four Horsemen who go
on to oppose New Deal Legislation and play a key role in Franklin Roosevelt’s struggles and
battles with the Supreme Court, a role Taft would be proud to have appointed a justice to fill. In
fact, as his time on the Court goes on he becomes closer and closer with his appointing president
and eventual Chief Justice as Taft describes him as the best justice on the Court when he is
appointed as Chief. This really shows the closeness of their relationship as many scholars today
and even then clarify Devanter as a “failure.”84 This designation partially comes from his
tendency to vote along with his colleague Justice Sutherland at any opportunity he could and the
fact that he wrote fewer opinions than any other Justice between 1843 and 1953.
Taft’s next selection again emphasizes the importance of relationships over even party
politics as Taft nominated another Southern Democrat, Joseph Rucker Lamar. While Lamar was
not close personally with Taft he was close with Taft’s close friend and earlier appointee Lurton.
Trusting the friendship of his ally from the Sixth Circuit, Taft also chose Lamar as he met all of
Taft’s other criteria, “his judicial and legislate record had manifested the conservatism and
ideological bent with which Taft was comfortable; his ‘real politics’ were eminently
84
Abraham p. 136
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acceptable.”85 He also makes this selection to please other Southern Democrats, in case his
previous selections of non republicans, and southern democrats was not enough.
Taft’s final selection shows his use of the Court, just as many other presidents have, for
more political rather than legal reasons. Fearing New Jersey would soon become a battleground
state for Republican delegates as Theadore Roosevelt prepared to run against his former chosen
successor, Taft looked to a considerably established New Jersey Republican, Mahlon Pitney who
had eleven years experience on New Jersey Courts, had been a US Congressman from New
Jersey, as well as the Republican floor leader and President in the New Jersey Senate. Later as
Chief Justice Taft publicly called his final selection to the Court a “weak member” to whom he
could “not assign cases”86 This is not as surprising considering he did not put as much into this
selection as he had all his others and mostly chose it for political convenience, showing that even
within one President these choices can be deeply personal and merely political.
Once he was able to get President Harding to appoint him to the Court in 1921, Chief
Justice Taft went from having control over the selections to the Court to having a deeply personal
stake in those selections and therefore becomes one of the many Chief Justices (and sometimes
associate justices) who has a great deal of influence over the president’s selection of other
nominees. “To Taft, the appointment was his greatest honor; he wrote: ‘I don't remember that I
ever was President.’”87 Taft’s influence over the relatively weak President Harding did not stop
here. “After virtually appointing himself— with divine assistance— Chief Justice in 1921, Taft
made himself instantly available as an adviser on nominations— and not only judicial
85
Abraham p. 136
86
Mason, Alpheus Thomas. 1964. William Howard Taft: Chief Justice. London: Oldbourne. p 213
87
https://www.whitehouse.gov/1600/presidents/williamhowardtaft
!51
nominations.”88 His strategy here was to overload President Harding with suggestions and
recommendations for potential nominees the moment a position became open and while this did
not always yield his first choice candidates joining him on the Court, it was however successful
at blocking nominees who would join in his words the “dangerous twosome,” Brandeis and
Holmes. Blocking this twosome became a passion of his, leading him to desire even more
influence over the president when it came to Supreme Court nominees. Taft explained his need
for power by saying “I must stay on the Court in order to prevent the Bolsheviki from getting
control.”89 This passion that came as Chief Justice, as noted earlier did not come from nowhere,
and did not come without clever maneuvering by Former President Taft. Taft even referred to the
Chief Justiceship as “next to my wife and children… the nearest thing to my heart in life.” 90 91
For this position, Taft ran a campaign lobbying for the position almost immediately after his
fellow Ohioan Harding was elected. In a note to the new President he even reminded him and
emphasized that his interest “lay solely in the post of the Chief Justice.”92 In fact, to reach this
post he had gotten the Chief Justice he appointed to agree to hold out for a Republican President,
who would likely appoint Taft. Wielding his relationship with a man he put on the Court, Taft got
Chief Justice White to remain on the Court, half deaf and blind, finally dying after writing over
700 opinions. Taft masterfully planned this appointment even as President and further proved the
88 Abraham
p. 146
89 Abraham
page 146 footnote 68, As quoted in C Herman Pritchett, the Roosevelt Court: A Study in
Judicial Politics and Values, 1937-1947 (New York; MacMillan, 1948) p 18
90
Abraham p. 146
This is not far off from What Chief Judge Garland said when Obama announced his nomination,
although he lobbied and fought much less for this position and said this more to illustrate the honor it was
for him to be considered for such a position rather than the realization of a lifelong dream.
91
92
Mason p 77-78
!52
use of these crucial relationships manipulating his way onto the Court even long after he had left
the White House.
Taft should not only be remembered as a President who used relationships wisely to
appoint many good Justices, both from the White House and the Bench, but also as someone who
valued separation of powers and the role of the Court in American government. Taft took his job
very seriously even winning the respect of his “dangerous twosome” and other colleagues who
often wrote dissenting opinions.93 He worked harder than most of his colleagues due to his
passion for this position, authoring 253 opinions of the Court’s 1,596 during his tenure. He was
able to lead the Court masterfully even as it was divided, finding a consensus whenever one
existed. Taft represents nearly all sides of the possibilities of relationships between and among
justices and presidents and even justices and other justices. Taft should be viewed as not only a
revolutionary but also what one can achieve in government through the use of these
relationships. Further, while his presidency was not without scandal, as Brandeis proved him not
the most honest of presidents,94 it would be hard to say that any of his actions as a result of his
relationships with the Court (or while as Chief Justice) were scandalous or unethical. He simply
was able to gain immense influence over the government and therefore the country for a decent
period of the early 1900s in a position he loved in a political world he excelled in. President and
Chief Justice William Howard Taft today stands out as an outlier and extraordinary case but
could also represent one very real model for President Justice relationships guided by friendship
and independence.
93 Abraham
p.147
94
During the congressional investigation of the Ballinger Affair, Brandeis proved that Taft was golfing
rather than reviewing hundreds of pages of documents he claimed to have read.
!53
Chapter 10. Charles Evans Hughes
Charles Evans Hughes’ represents a unique case study as he serves on the Court in two
different roles with a significant absence in between them. Furthermore, he came to the Court
with major political experience and connections and this continued in his years in between
appointments. Hughes represents one of the rare examples of someone using the Court not only
as a career endpoint but also a position to further their career. While for most the Court is their
final stop in a successful legal or political career, Hughes is able to use his first appointment to
the Court to further propel his political success, leaving the Court in 1916 to run for President
before eventually becoming the Secretary of State and then later rejoining the Court as Chief
Justice in 1930. While this certainly was an unusual path, at the time it was one that made more
sense in context of the political norms. This career also represents many things that do not seem
possible in the post-Johnson era. Today it would almost be unthinkable to have a Supreme Court
Justice resign in order to run for President. Furthermore, positions such as Secretary of State and
Governor have become politicized to the point that they would be toxic to hold if someone had
aspirations of a spot on the Supreme Court nomination. Being a senior political leader in the
party that grants one access to jobs such as Governor of New York, Secretary of State, and even a
Presidential candidate however represent the level of prestige needed at the time in order to be
considered for a justiceship as these positions of prestige guaranteed connections to the President
that would more often than not facilitate nominations. In fact, that situation is another aspect of
his nominations both times that set him apart, being a Justice on the Supreme Court and even
Chief Justice at the point he was nominated were not aspirations of Hughes’. Justice Hughes in
many ways defied political norms of the time in his belief that it would be “abhorrent” for a
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Justice to take part in Presidential politics but is pressured by his party as the best Candidate and
resigns as Justice when he wins his parties nomination in 1916. 95 Only a few Justices seem to be
in similar situations across history as Charles Evans Hughes, the first Chief Justice John Jay of
course leaves to take the same position Hughes fills as Governor of New York and uses the Court
as his political launch point. Similarly John Rutledge the second Chief becomes Chief after a
short stint away from the Court. While many justices throughout history have lofty political
careers before joining the Court, Chief Justice Earl Warren manages to gain the position by
backing out of the Presidential primary battle for the Republican nomination. The only other
major comparison, is Taft, who as previously discussed was both President and Chief Justice.
Hughes in many ways is the perfect illustration of the different level of possibility that is
available to those personally and politically connected to the president. When the Chief
Justiceship opened up one of the under Secretaries of State close to the president came to him
and asked, are you interested in being Chief Justice. This is not a conversation that happens at
every workplace between two political elites, this is a unique conversation that can only happen
realistically between people that are personally connected to the President. In fact, much like
when Hughes is asked to pursue anything in his career, he must be convinced and his first
response is No.96 In a stunning letter to the soon to be justice, Taft writes Charles Evans Hughes
declaring his desire and need to put him on the court.
Hughes, Charles Evans, David Joseph Danelski, and Joseph S. Tulchin. 1973. The Autobiographical
Notes of Charles Evans Hughes. Cambridge, Mass: Harvard University Press. p. 178 and 181
95
96
Hughes p.159
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I write to you to offer you the position of Justice of the Supreme Court of the
United States….
I know the reasons that suggest themselves against your acceptance and I do not
minimize them. I believe as strongly as possible that you are likely to be
nominated and elected president sometime in your future unless you go upon the
Bench or make such associations at the Bar as to prevent. …. The position is for
life. the salary is $12,500 and will in a ll probability be increased at the next
session to 17,500. The chief justiceship is soon likely to be vacant and I should
never regard the practice of not promoting Associate Justices as one to be
followed. Though, of course, this suggestion is only that by accepting present
position you do not bar yourself from the other, should it fall vacant in my term.
…. PS Don’t misunderstand me as to the Chief Justiceship. I mean that if that
office were now open, I should offer it to you and it is probable that if it were to
become vacant during my term, I should promote you to it; but, of course,
conditions change, so that it would not be right for me to say by way of promise,
what I would do in the future. Nor, on the other hand, would I have you think that
your declination now would prevent my offering you the higher place, should
conditions remain as they are. 97
Throughout this letter the president did two things: beg and make promises. It is extremely clear
that President Taft thought highly of the man he wanted to nominate as he discussed
extraordinary potential positions Hughes could have instead of this job, the Presidency or the
Chief Justiceship. This goes to show the benefit of having a working relationship with someone
before nominating them for a position such as this. If you know enough about the person, you
can flatter them in your recruitment and sweeten the deal for them showing this either as the
ultimate compliment or a launching point for future political success. Second, President Taft did
a fair amount of making almost promises that he can’t keep but surprisingly are almost true. This
letter shows that the successful politically active Hughes to this point would have been slightly
concerned about the salary much like the first Chief. The life time appointment, however, would
look very enticing with most of the Justice’s jobs to this point in his career came with political
97
Hughes p.159 and 160
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term limits or popular discretion involved. President Taft furthermore is very much upfront with
Hughes about wanting him as Chief and suggests even that if the slot were open today he would
appoint him Chief, over his otherwise policy of not elevating from the Bench.
In his response Hughes seems hesitant but excited as he explained his concern that he
may not be suited for the position but would take it on with so much passion that he would hope
to live up to the expectations and demands of the job. He further went on to write an interesting
response to the continued hinting about the role of Chief Justice, “Your expressions regarding the
Chief Justiceship are understood and most warmly appreciated. You properly reserve entire
freedom with respect to this and i accept the offer you now make without wishing you to feel
committed in the slightest degree.” 98 This comment seems strange from a purely greedy political
vantage, had Charles Evans Hughes been simply focused on power he would have accepted this
post and reminded President Taft that if such a day ever came in his term when the Chief vacates
his position, he has all but guaranteed this to Hughes and will have no other choice. Instead
Hughes here shows his character and possibly reveals some of the qualities about himself that
lead him to later actually becoming Chief. His respect here for the President as a politician and
leader is shown as he gracefully accepts this office and shows that he is here to serve the people
regardless of future opinion.
In his autobiography Hughes takes two pages to discuss his views on the ideal
relationships between the President and the Judicial Branch, more specifically here he focuses on
the issue of whether or not Justices should be appointed to extra judicial positions, such as the
one he was appointed to by Taft. His opinion on this is mixed but extremely telling. Hughes for
98
Hughes p.160
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the most part is against these positions, largely based on his own experience and his experience
with the work of the Court, however he does draw exceptions in what appears to be the most
prominent extra judicial appointment, international arbitration. Hughes starts his critique by
declaring that “The reasons for this practice are obvious. There may be hundred of persons well
qualified for an administrative inquiry, but they may not be well known to the country or may
have a disqualifying identification with politics or controversies. A Justice of the Supreme Court
may be of outstanding qualifications and high in public confidence. Still, I think that the practice
is bad.99” Outlining the ease of selecting a Justice, Hughes shows that he understands the value in
choosing a Justice, and to the public it is the obvious choice, as they are to be unbiased to a fault.
This explanation also avoids entirely the bigger issue of separation of powers. Most likely as
someone who took such appointments, Hughes believes that there is not an inherent conflict of
interest or overt ignorance of the dividing principles of the American Democracy. Hughes goes
on to discuss the workload of the justices, something he struggled with for a variety of reasons
throughout his career but that burdened him to the risk of his own health when he tried to both
fulfill his duties on the Court and oversea the inquiry into the Postal service. In the following
selection, Hughes explains his biggest quarrel with the practice,
To the extent that the administrative works cuts into judicial time, the Court is
deprived of the benefit of Justices Collaboration and sometimes this may result in
an evenly divided Court. Again, these administrative commissions bring the
Justices into a realm of controversy with which he should not be associated. It is
best of the Court and the country that the Justices should strictly limit themselves
to their judicial work, and that the dignity, esteem, and indeed aloofness, which
attach to them by virtue of their high office as the finial interpreter of legislation
and constitutional provisions, should be jealously safeguarded.100
99
Hughes p.166
100
Hughes, p.167
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Charles Evans Hughes worried, quiet perceptively, that taking extra judicial appointments would
put the justices at risk of entangling them in political disputes that will tarnish the public
confidence in the Court. This is a very fascinating almost foreshadow statement to the later
issues with Justice Fortas, as he was too close and too involved with the President, the public’s
confidence in him was permanently stained. Further, it is interesting to read this statement in a
day when controversial cases bring about public discourse that blames specific Justices for
unpopular government policies and brings at least the names and opinions of the Justices into
contention. Hughes goes on to describe his ideal role of the Justices in the American system,
even emphasizing the need for “aloofness” to be an attribute of the perfect Justice, a statement
that makes Justice Souter seem ideal. In this description he also creates an implied separation
between branches especially when emphasizing the “aloofness” and jobs of interpreting the
actions of the other branches. In this picture of a justice he puts the job of the justice exclusively
answering constitutional questions on a pedestal.
In the statement, “In saying this I do not criticize the the acceptance by justices of the
recent appointments made by President Roosevelt.”101 Hughes puts the burden on the president
not too exploit the relationship through calling on the Justices to take positions they cannot turn
down. This illuminates the power balance he sees in the relationship between the two figures.
Throughout this the Chief Justice allows for some special commissions which suggests that he
believes in a working relationship between the two branches that would put the Justices in
consideration for these positions. He also shows that the power dynamic is such that when the
President asks, a Justice is not in the best position to say no. Charles Evans Hughes highlights a
101
Hughes p. 167
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series of appointments that he either felt were worthy of the Justices time or that the Justice
could not have turned down, including: “After Pearl Harbor, Justice Roberts could not well
decline the President’s request to take part in the inquiry as to the causes of that disaster. And
Justice Brynes was especially fitted for the exacting task to which the President summoned
him.”102 Hughes however calls out both of these appointments as well as his own as being overly
onerous, demanding time that should have been dedicated to duties of the Court. Hughes also
raises an interesting issue with these appointments specifically and generally, that they leave the
Court looking as if it has open seats. While he specifically was referring to here was the
possibility and rumor that Roosevelt provided many of these appointments in order to try and
coax certain justices off of the Court and fill their seats with pro-New Deal judges, it was not a
practice without precedent. Chief Justice John Jay used one of his extra judicial appointments as
almost a springboard from the Court, although his was out of desire for more work where
justices of Hughes’ era already have too much work. While Roosevelt’s alleged plot does not
fully succeed, Brynes does eventually leave the Court to follow a number of appointments from
the president.
Finally, Hughes comes to his major exception for stealing justices time away from the
Court, international law. The most common reason, as cited by Hughes at least, that the President
calls on his justices to serve their country in another respect is dealing with international legal
disputes or treaties. Again here Jay serves as the precedent that helps inspire the rule. Speaking
more precisely about international arbitration something he was asked to do, as were Chief
Justices White and Taft, Hughes say this calls “for judicial service of the most important
102
Hughes p. 167
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description, and when Governments pay a Justice or Chief Justice the compliment of calling
upon him to act as arbiter of international dispute, it may be in the interest of peace and
international good will that he should accept.” 103 After this show of support, Hughes flips his
words and while hinting at the Nuremberg Tribunals and future international tribunals being
discussed in the years after World War 2, when this book was being written, he says there is too
much on the plate of the Justices already and they should not be put in a position to accept. By
highlighting the honor bestowed on these judges when the position is offered and then suggesting
they already have too much important work to do at home, Hughes again puts pressure on the
President to hold up their end of the relationship and not put a Justice in a position where they
must say yes.
Overall, Charles Evans Hughes’ thoughts on the subject are both interesting from a
historical perspective and provide illuminating details into the dynamics of these unique
relationships. One theme seen throughout this study, hat tis better understood through Hughes is
that of the presidential power of pressure. It is easy to find examples of people answering the call
of service when asked by the president to take on a position or project they may have been
adverse to before, however, that pressure is especially important when it comes to positions
picked by the president that are uniquely crucial to government operations and that are lifetime
appointments. Hughes like many of the other justices discussed, was not keene to serve as either
Associate Justice or later Chief Justice. As a successful lawyer, politician, and statesmen, Hughes
had many opportunities available at the times of his appointments, however as illustrated by both
of his appointments Presidential pressure and especially that coming from personal letters and
103
Hughes p. 167
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meetings inside the White House, carries an almost irresistible weight. The more surprising and
comforting revelation from Charles Evans Hughes’ autobiography and tenure on the Court is that
in most cases the weight associated with these gestures wore off while on the Bench. While this
paper has found many who could not resist the President’s will while on the Court, first Jay, then
Hughes, and later Warren all seem to value their position in such a way that allows them to stand
their ground on the issues. Hughes is able to use his weight and resist the Court packing plans as
well as frequently proudly exclaimed his independence from party and president when discussing
how he came to decisions in cases.
Through these ends, Hughes is able to highlight some of the best qualities of the
Washington model of a justice, a model that Hughes shows can be ideal. Hughes was able to
bring a level of prestige to his positions, he was able to bring strong knowledge of government
and legal actions, and he was able to bring working relationships and the tools to build working
relationships with many presidents. While it is rare to get a person who has served as Secretary
of State, Associate Justice, and has ran for President himself, Hughes shows all of these previous
political engagements do not need to serve as disqualifies for the Court but allow him to excel on
the bench and fit nicely into working relationships with the President, allowing the President at
times to exercise his power of persuasion and resisting it when he felt it was his job to do so.
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Chapter 11 Louis D. Brandeis
Louis D. Brandeis was not only the first Jewish Justice of the United States, but in this
research has produced the closest to a real example of the ideal Supreme Court Justice, in terms
of relationships with presidents. Justice Brandeis serves as the ideal model in a cross branch
political relationship due to one of the most fundamental elements of his character:
independence. Brandeis was a strong believer in independence as a personal principle from a
young age and can be seen throughout his legal career boasting this quality. As a lawyer, this
manifested through his ability to remove himself from his duties to his clients, or the parties that
approached with him with a problem. He would instead solve cases in a way that benefited both
parties, often to the disdain of his clients desires. Because of this he pioneered the field of ProBono legal work, taking public interest cases free of charge so he could feel unrestrained by
either side and solve the problem in mutually beneficial unique fashion. His value of personal
independence is a major reason for his success as a justice but does not fully explain his ideal
selection as a representation for the ideal model in this study. He fits this because of his
relationship with many presidents and justices throughout his career, his ability to advice,
befriend, and still vote independently. Louis Brandeis’ path to the Court is directly connected to
personal relationships, as he befriends and advises President Wilson, supplanting his spot in
Wilson’s mind as a future member of the Supreme Court. While today remembered as titan of the
Court who redefined the legal field, many often over look the fact that much of Brandeis’ life and
much of his expertise were economic. Around the time that he published his economic legal
articles collectively known as Other People’s Money the future Jewish Justice began advising the
future President Wilson on economic policy. He was instrumental throughout the campaign and
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early years of the Wilson Presidency, not as a lawyer or judge but instead as an economic policy
advisor and friend of the President.
Brandeis’ relationship with Wilson, and Wilson’s respect for Brandeis is often masked by
the independence of his justice’s character. This respect was mutual. After meeting for a few
hours during the Wilson campaign for President to discuss economics, the prominent lawyer
wrote a mutual friend saying, “It seems to me, that he has all the qualities for an ideal President
— strong, simple, and truthful, able, open-minded, eager to learn and deliberate.”104 From this
point Brandeis becomes a key economic advisor even sending urgent telegrams calling for
changes to the economic sections of Wilson’s speeches. 105 This close relationship advising the
candidate on economics lead Wilson to imagine Brandeis as a key player in the administration
but not always as a justice. When assembling his first cabinet, President Wilson considered
Brandeis for Secretary of Commerce, until party faithful from Massachusetts urged him to
consider a well known New England party leader, if he wanted a New Englander in the
Cabinet.106 This relationship was close enough even that when scandal hit the Wilson campaign
in 1916, Brandeis was rumored to have been Wilson’s lawyer shuffling hush money around and
then demanding a seat on the Supreme Court in exchange for his silence. 107 This of course is far
from the truth, but highlights the perceived closeness and trust between Brandeis and Wilson.
The Ballinger-Pinchot affair played a key role in bringing “the people’s lawyer” to national
104
Heckscher, August. 1991. Woodrow Wilson. New York: Scribner. p. 256
105
Heckscher p. 257
Daniels, Josephus. 1924. The life of Woodrow Wilson, 1856-1924. Philadelphia: The John C. Winston
Company. p. 138
106
107
Maynard, W. Barksdale. 2008. Woodrow Wilson: Princeton to the Presidency. New Haven: Yale
University Press. p. 308-9
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prominence and inspiring Wilson to later nominate him to the bench.108 In this episode, Louis
Brandeis represented Louis Glavis before a congressional committee investigating the events
surrounding his firing from the General Land Office and other accusations of Governmental
fraud. Brandeis made the entire case a major embarrassment for the Administration proving the
Taft had backdated documents and lied about his actions as an executive. This lead to Taft’s
distrust and outright dislike of Brandeis. Originally when Louis Brandeis is nominated for the
Supreme Court, Former President Taft makes a public statement denouncing this nomination.
Later on the Court, Taft came to respect his fellow Justice, highlighting Brandeis’s ability to use
and mend relationships.
While he was appointed to a Court dominated by conservatives, Brandeis finds little
trouble personally gaining the respect and friendship of his colleagues with the exception of the
publicly anti-semitic Justice McReynolds. He even goes on to befriend Presidents who serve
with him such as President Roosevelt who endearingly calls the first Jewish Justice “Old Isiah.”
Even while forming a bond with President Roosevelt, Brandeis still commands his ability to stay
truly independent. Brandeis signs a letter to the President written by Chief Justice Hughes and
joined by conservative Justice Van Devanter publicly defending the Court against Roosevelt’s
court packing plan. While historically Brandeis is remembered as an inspirational progressive
justice, Brandeis never forgot his core beliefs about economics and his lifelong pursuit against
the “curse of bigness.” 109 To this end, Brandeis votes down key New Deal cases in order to limit
Spillenger, Clyde. "Elusive Advocate: Reconsidering Brandeis as People's Lawyer." The Yale Law
Journal 105.6 (1996): p. 1494
108
109
Brandeis, Louis Dembitz, and Melvin I. Urofsky. 1995. Other People's Money and How the Bankers
Use It. Boston: Bedford Books of St. Martin's Press.
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the presidents power and fight economic centralization.110 He was quoted as telling an aide of
Roosevelt’s “This is the end of this business of centralization, and I want you to go back and tell
the president that we're not going to let this government centralize everything.”111 He did this
even after advising Roosevelt early on helping to create the Securities Act, a key piece of the
New Deal. Brandeis even voted with the majority in the United States v. Butler case upholding
aspects of the Agricultural Adjustment Act because he found the tax did not conflict with the
constitution, even though personally he did not agree with the overall policy.112
In the beginning of his career a majority of his opinions are written either dissenting with
or in the majority with Justice Oliver Wendall Holmes, later liberal additions to the court, such as
Justices Cardozo and Stone, are often seen voting in agreement with Justice Brandeis.113
Brandeis was never shy to speak his mind known for his dissents, and voted with whomever and
against whatever when he saw the facts were on that side. Being a man of facts guided Justice
Brandeis to a position where it would be near impossible to say that his relationships in anyway
corrupted him and yet he still maintained strong political and personal relationships. Another
example of his character comes in his famous concurrence in the Ashwander case. In a pivotal
New Deal case dealing with the Tennessee Valley Authority, a creation Brandeis very much
Louisville v. Radford (1935), Brandeis wrote for a Unanimous Court overturning an act that would
have given FDR more economic power, Brandeis also joined the majority in Schechter Poultry Corp. v.
United States (1935) voting against giving FDR power to make any law he saw as necessary for economic
recovery.
110
111
Harry Hopkins, "Statement to Thomas Corcoran Giving His Recollections of the Genesis of the
Supreme Court Fight," April 3, 1939, typescript in Harry Hopkins Papers
Chicago-Kent College of Law at Illinois Tech. "United States v. Butler." Oyez. https://www.oyez.org/
cases/1900-1940/297us1 (accessed April 20, 2016).
112
113
Cardozo, Stone, and Brandeis were the liberal block known as the “Three Musketeers” in opposition of
the conservative Justices popularly known as the “Four Horsemen”, Justices Butler, McReynolds,
Sutherland, and van Devanter.
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supported personally, he decided not to just vote with the majority to support the
Constitutionality of something he agreed with personally. Instead, Brandeis wrote a concurring
opinion to give a detailed explanation of why this case should have been thrown out of the
Court’s and was not a decision for the justices to make.114 In most instances, if a justice believed
in the Constitutionality of landmark legislation challenging a president they often agree with,
they will vote with the majority stay quiet. Brandeis, however, could not sit idly by and made
sure that his views of the role of the Court were made clear.
Brandeis’ nomination to the Court also represents and anomaly for its time, not only
because he was the first jewish justice named to the Court but also because of how long and
contentious his nomination was in the Senate. This nomination process differentiates itself from
those of the modern era as the nominee never testified before the Judiciary committee, in fact
Brandeis spent the entire five months in Boston only receiving news of the hearings in the papers
as well as through his floor manager, friend, and future momentary colleague, Felix
Frankfurter.115 Throughout his nomination there were rare overt mentions of antisemitism, but
many subtle comments made. In fact one of the only mentions of the word “Jew” came during
the testimony of Francis Peabody, who when asked about Brandeis’ ethical behavior responds
that he had only recently learned that Brandeis was a Jew.116 The anti-semitic President of
Harvard, A Lawrence Lowell, wrote letter against Brandeis’ nomination, however as noted by the
role of Harvard Law Professor Felix Frankfurter in this process, the professors and students of
114
Chicago-Kent College of Law at Illinois Tech. "Ashwander v. Tennessee Valley Authority." Oyez.
https://www.oyez.org/cases/1900-1940/297us288 (accessed April 20, 2016).
115
Frankfurter is sworn in on January 20 1939, while Brandeis Retires from the Bench on February 13.
116
Parry-Giles, Trevor. 2006. The Character of Justice: Rhetoric, Law, and Politics in the Supreme Court
Confirmation Process. East Lansing: Michigan State University Press. p 41
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the University did not fully support this move writing a separate letter supporting the nomination
of one of their smartest alumni. 117 Brandeis’ independence, what this study prides as making him
the ideal model of President Justice relationships, was brought up as a negative. Many major
Boston attorney’s opposed his nomination because he rarely gave in to legal customs such as
granting opposing counsel extensions on briefs. This serves as another example of his high
ethical standards always adhering to the rules, rather than customs. Brandeis’ nomination battle
serves as almost a foreshadow of future nomination processes although with the nominees
present. This early politicized fight even further sets Brandeis apart as an exemplary case as he
can be more easily compared to nominees that endure long floor flights and hearings that become
more normal during the post-Johnson era.
Chapter 12. Felix Frankfurter
Felix Frankfurter’s path to the Supreme Court was a fascinating one that stands out in
many ways and yet follows an approach is driven by deep relationships. First and foremost, Felix
Frankfurter was one of the top legal scholars of his generation and was no surprise in the
discussions about Supreme Court appointments. As a prominent professor at Harvard Law and an
inspiring mind, Frankfurter found his way into public perceptions of law and government long
before he ever became a justice. The interesting aspect to all of this is that while in many ways
he fits the prototypical mold for an appointment especially at this time, Frankfurter personally
never necessarily saw it coming or thought of himself as a candidate. His path to the U.S.
Supreme Court began in sincerity when he was announced as a candidate for the Massachusetts
Supreme Court. Following this announcement Frankfurter received the first of many similar
phone calls from President Roosevelt who suggested he turn down this opportunity, suggesting
117
Brandeis reportedly had the highest GPA in Harvard history under the old grading system.
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“You ought to be on the Supreme Court of the United States.”118 While Roosevelt first suggested
a future job for the law professor, he did not actually offer it or have the ability to nominate a
new justice at that time. Roosevelt in this moment comes off as much more of schemer trying to
put in motion future moves. In Frankfurter, we also see another example of a Justice that does
not aspire to the Court. Roosevelt instead tries to lure him by offering him the position of
Solicitor General, which he turns down. 119 To this Roosevelt says I'm going to talk to you as a
friend if I make you solicitor general “I can put you on the Supreme Court.” Frankfurter
responds “I’m not going to take one job I don't want on the chance or the expectation of having
another job that I'm not sure I want”120 In this memory, Frankfurter outlines the inner conflict he
felt as Roosevelt continued to dangle a job over him that he was not completely sold on to begin
with. This shows that while the Supreme Court was transforming into an incredibly prevalent
group of actors in American politics and had already become a much more prestige role, it still
had not become the ultimate position for a prominent legal scholar. Frankfurter, an influential
power broker himself in his dual role at Harvard and growing D.C. presence, clearly did not want
to give up this autonomy and ability to have his hand in many projects from new executive
agencies, to creating the ACLU, to shaping the minds of future political and legal leaders like
Thomas Cochran.
Frankfurter played a key role as an advisor to Roosevelt in creating and implementing the
New deal. In fact Frankfurter furnished the newly created government agencies of the New Deal
118
Frankfurter, F., Phillips, H. B., & Paul Avrich Collection (Library of Congress). (1960). Felix
Frankfurter Reminisces: Recorded in talks with Harlan B. Phillips. New York: Reynal Company. p. 278
119
Frankfurter Reminisces p. 278
120
Frankfurter Reminisces. p. 278.
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with his students from Harvard Law school often referred to as “Felix's Happy Hot Dogs.”121
Beyond being an advocate of the New Deal and an advisor to the administration while still at
Harvard, Frankfurter and Roosevelt developed a close personal relationship. The Justice
remembered in an oral interview that it was not uncommon for his wife and him to be invited for
a weekend in Hyde Park at the Presidents home for a weekend at least every year.122 This meant
that when he was invited after Cardozo’s death he did not seem to think it was anything out of
the ordinary until his wife commented to him that Roosevelt was acting strange.123 While visiting
Hyde Park the President eventually pulled Frankfurter off and said “I want to tell you why I can’t
appoint you to succeed Cardozo.” Frankfurter felt embarrassed hoping to relieve the President of
this bad feeling he had over not being able to appoint Frankfurter.124 Roosevelt then revealed the
names of other jurists he wanted on the Court and requested Frankfurter’s assistance in
discerning which ones are worthy of the nomination. In this remembrance the Roosevelt
Frankfurter relationship is able to be placed on the spectrum somewhere in between Washington
Jay and Johnson Fortas. It seems to be a very similar relationship to the first president and chief
although slightly different due to the different time they lived in and the different personalities
present, it does not seem however as extreme or catastrophic as Johnson and Fortas, but this may
have been the better example Johnson failed to follow when it comes to having a close
relationship with a leading legal scholar and jurist. Furthermore, Roosevelt’s trust of Frankfurter
121Graham
Jr., Otis L. "THE HAPPY HOT DOGS". The New York Times June 12 1988. Web. 11 Jan.
2016. http://www.nytimes.com/1988/06/12/books/the-happy-hot-dogs.html
122
Frankfurter Reminisces p. 279
123Frankfurter
124
Reminisces p. 279
Frankfurter Reminisces p. 280
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was seen by him seeking Frankfurter’s advice on who to nominate instead of him. Finally, after
another round of teasing just when Frankfurter was beginning to get fed up with being “whipped
around” on the phone by the President, he told him he was sending his name to the Senate to be
nominated for the Supreme Court.125
Before ascending to the Court, Frankfurter developed relationships with other key legal
minds such as Brandeis and Cardozo. In the 1930s while playing a role as Roosevelt’s Harvard
influence for the New Deal, Frankfurter grew closer with Benjamin Cardozo, the Jewish Justice
that he would eventually replace. Similarly, Frankfurter worked with Louis Brandeis to advocate
for causes as directed by the first Jewish Justice. His relationships with Presidents and other
Justices shifted dramatically from here. After developing a close relationship with Roosevelt
leading to his trust in Frankfurter’s judge of character for future federal employees and even
other candidates for the Court, and close relationships with two key predecessors on the Court,
Frankfurter begins to treat other Justices and even Presidents like his law students at Harvard.
Other Justices began to despise the lectures and condescending tones from Professor Frankfurter.
One common example of this is his career long dispute with Justice Black. This can also be seen
in his letters with President Kennedy. He talks to the President respectfully, respecting the office
but when talking to Kennedy it also comes off as a professor speaking to a pupil rather than a
justice speaking to the President. He is discussing a prominent official when he adds the aside
“who I won’t have to remind you was President Woodrow Wilson’s Secretary of the Interior.”126
This tone and attitude cited by many in their interactions with Frankfurter begins to call into
125
Frankfurter Reminisces p. 283
126
Felix Frankfurter to the President, White House Famous Names, Felix Frankfurter, WHCF, JFK Library
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question the benefit of selecting nominees through personal connections. It would seem that if a
President like Roosevelt cultivates this strong personal relationship with a nominee such as
Frankfurter that the nomination would also be an endorsement of their personality. While this
could be a case where Roosevelt may have felt that Frankfurter’s legal prowess made up for his
condescending personality, a larger question arises about this nomination. The larger question
comes from Frankfurter’s fame as a justice, while this isn’t fame in a Hollywood sense, the
Justice is known in legal circles for his promotion of and adherence to the principle of judicial
restraint. Frankfurter disappointed those who expected him to transform the court into a liberal
bastion. Some of his key victories such as those in Minersville School District v. Gobitis were
viewed as loses for his fellow New Deal appointees.127 Frankfurter upheld a Penn law requiring
students to salute the flag, rejecting Black’s free speech arguments. Frankfurter composed a
patriotic ode to the country as war approached, though Gobitis would not be over turned three
year later in West Virginia v Barnetter the opinion provoking a Frankfurter dissent.128
Felix Frankfurter’s relationship with Roosevelt was exemplary of the times in that he
shared both a personal and professional relationship with the President before ascending to the
Court. He can be seen advising the President on a variety of issues and his touch can be seen all
across Roosevelt's administration through the young law students he placed in positions of
power. Frankfurter would not represent the ideal Justice in the eyes of a President. A Supreme
Court Justice, or numerous justices, can be a Presidents biggest legacy as they can interpret using
the feelings and wishes of the Presidency for years beyond the final day of a Presidents tenure in
Chicago-Kent College of Law at Illinois Tech. "Minersville School District v. Gobitis." Oyez. https://
www.oyez.org/cases/1940-1955/310us586 (accessed April 20, 2016).
127
128
Chicago-Kent College of Law at Illinois Tech. "West Virginia State Board of Education v. Barnette."
Oyez. https://www.oyez.org/cases/1940-1955/319us624 (accessed April 20, 2016).
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office. Frankfurter instead took the Washington model to a whole new level. Rather than simply
exclaiming the need for separation of powers and then continuing to take on extrajudicial
appointments showing that he could have easily been an extension of the Presidents will on the
Court, Frankfurter lives separation of powers and votes with his conscience and legal beliefs
rather than with his President. The framers would have loved this because he shows that a
relationship does not necessarily require collusion and corruption. Sadly as the Court only
becomes increasingly politicized from here, it is rare to see a Justice follow the Frankfurter
model and even rarer to find a President who would honestly attempt to recreate this scenario. It
would make more sense under theories of Presidential power for a President to search for a
Justice like Thurgood Marshall who had previously played roles in the Johnson administration as
Solicitor General, advised the President in many areas and then went on to be the ideal liberal
justice often following the theory of judicial activism as Johnson had intended. Frankfurter,
while flawed, should be hailed as an honest justice for not letting relationships change his
decisions on the court instead sticking to his own beliefs.
Chapter 13. Earl Warren
Earl Warren provides yet another example of a famous and influential justice who
followed a some what unconventional path and went on to have interesting and important
relationships with multiple presidents. Warren started his career as a prosecutor, as a district
attorney and then as the Attorney General of California. Warren says in his autobiography that
while Governor he at first did not have any national aspirations in politics, until he was
convinced by other members of the Republican party. This led to him becoming Governor
Dewey’s Vice-Presidential Candidate in the campaign against Harry Truman. Followed later by
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Warren running in the primaries against soon to be President Eisenhower. He cut a deal with the
Presidential hopeful to drop out of the race in exchange for the first open Supreme Court seat.129
While this was the first or last time a Supreme Court seat was dealt as political patronage, it turns
out to be one of the most fascinating examples, and also brings up a piece of personal
relationships that hasn't been discussed yet, using these appointments to keep friends from
becoming enemies. While President Eisenhower and Earl Warren did not have a significant
relationship before the primaries, Warren often refers to his respect for “the General.” 130 This
deal was a win for both sides, although it probably served as a much larger victory for Warren in
the long run. Because of Eisenhower’s popularity, it is pretty clear that especially in the
Republican primaries, Earl Warren would have lost pretty handedly. Therefore, by striking this
deal he guaranteed himself a seat at the table while avoiding ending his political career entirely.
Furthermore, this deal worked out well for Warren as the first open seat happened to the Chief
Justiceship, making his seat at the table a rather important one. Because of all of this, it almost
makes one wonder why Eisenhower would cut this deal. To this question, the best answer is the
unpredictability of the Chief Justiceship being the the next open seat. Chief Justice Vinson died
unexpectedly of a heart attack at the age of only 63. Due to the fact that he was in fact one of the
youngest on the Court at the time and only one justice was over 70, Eisenhower was under the
assumption that he would have time as President before having to appoint Warren. The other
factor in this is that Eisenhower wanted to appoint moderate justices and at this point in his
career, Warren was known for being a tough on crime prosecutor and moderate governor,
Horwitz, M. J. 1998. The Warren Court and the Pursuit of Justice: A Critical Issue. New York: Hill and
Wang. p. 7
129
130
Warren, Earl. 2001. The Memoirs of Chief Justice Earl Warren. Lanham, Md: Madison Books. p. 6
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showing that while maybe he was not Eisenhower’s best friend or top choice for Chief, he did fit
the bill for a justice Eisenhower wanted. This also was the result of a convention numbers game.
For Eisenhower, at the convention he was very close to the number of delegates needed to secure
the nomination when he proposed this deal to Warren in order to guarantee his nomination. After
the election, Warren accepted the position of Solicitor General, reminding the President that it
would provide him the legal experience he needed to become the obvious choice for justice when
the next seat opened, true to the President-elect’s promise. Before this could be announced
however, the Chief Justice died suddenly of a heart attack.
This decision was made exclusively through political conversations between prominent
Republicans and a recently elected President. This decision was made more out of political
convenience rather than as true patronage or due to close ties going back many many years. In
fact one key of the relationship between Eisenhower and Warren is the staunch reaction of the
President to the decisions Warren makes and oversees on the Court. Eisenhower claimed that
these were not the decisions he envisioned when he appointed Warren to the Court, while Warren
claimed that his decisions did not deviate from his legal background and record. This
disagreement signifies the true lack of meaningful relationship prior to Warren’s appointment,
while they had known each other as prominent Republicans and advisories in the primary
process, it wasn't significant enough to signal to Eisenhower how Warren would vote beyond the
suggestion that he would be moderate. In this case, I think that the strength of personal
relationships is highlighted. While this process yielded one of the most well known justices who
oversaw landmark cases like Brown v Board, Mapp v Ohio, and Miranda v Arizona,s it comes
off as more corrupt and a bigger betrayal of the Constitution than the selection of close personal
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friends. When selecting a close personal friend the President can at least propose that he has
selected this justice because through their long relationship he has come to understand this
judge’s character and is assured that they will carry out their duties to the Constitution faithfully
and at the level required of this prestiges position. Here, the backroom politicking often
associated with deals that result in unnecessary government spending in order to secure a
nomination. While it worked out in the end appointing an able Judge, this seemed like a bigger
risk as it is less clear to the President what his nominee will do.
Earl Warren’s relationship with President Eisenhower can be discussed and analyzed
through two key conversations. The first is a conversation at the White House while Brown was
being decided, and the second is a conversation in 1965 on Air Force One going to the funeral of
Sir Winston Churchill. In the first conversation, Chief Justice Earl Warren was invited to the
White House for a dinner while Brown was under submission. Also at this dinner was John W.
Davis, the lawyer for the segregation states. Warren states in his memoir that the President
essentially went out of his way to talk to Warren about what a great man Davis was. At the
conclusion of dinner, according to Warren, Eisenhower took him by the arm and walked him into
the other room and said, “These are not bad people. All they are concerned about is to see that
their sweet little girls are not required to sit in school alongside some big overgrown Negroes.”131
This is one of the clearest cases of a President trying to use their influence in case in an unofficial
way that could ever exist. While President Eisenhower never explicitly says decide the case this
way or that way, he provides arguments for the side he implicitly supports and seems extremely
focused on protecting the dignity not only of John W. Davis but also southern segregationists as a
131
Warren p. 291
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whole. This seems to mimic the kind of politicking that landed Warren on the bench, but in this
case Warren does not give in to the politicking. More importantly this seems like a moment when
a justice with closer ties to the president would give in to the President’s wishes. While Warren
most likely kept his stance on Brown because he not only thought he was in the right, but had
also worked fairly commandingly to assure that this decision would be unanimous, it is possible
that the defiance here came from the lack of allegiance to the President through personal
relationships. This moment serves as an example of the cost or benefit of choosing a justice who
isn't strongly personally connected to the Commander and Chief. Through the eyes of 2016 when
there is near consensus agreement that Brown was decided correctly, this is easy to label as a
victory and benefit of picking a justice who does not feel obliged to give into a persuasive dinner
invitation. However, from the lens of presidential power theory, this is a cost, when picking
someone who does not carry such allegiances the Presidential influence will not always work
especially when it comes to a Chief Justice who is in a fairly isolated and safe spot allowing him
to resist influence. In fact, had this same situation occurred between Presidents and Chief
Justices with closer ties, it would probably be not only easier to influence the Court, but a dinner
such as this one would not even be necessary, the justice would already know the president’s
preference. In fact that method would more follow President Eisenhower’s own views on good
leadership through his famous quotation, “The essence of leadership is to get others to do
something because they think you want it done and because they know it is worth while doing -that is what we are talking about."132 Earl Warren, however wanted something else and did not
132
Remarks at the Republican Campaign Picnic at the President's Gettysburg Farm, 9/12/56 Found
through the Eisenhower Presidential Library at https://www.eisenhower.archives.gov/all_about_ike/
quotes.html
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follow the President’s leadership in a crucial case, helping elevate his name in history instead of
falling as another presidential pawn.
Another clear example of the relationship dynamic between Warren and Eisenhower
comes through their conversation after Eisenhower had long since left office. Eisenhower is oft
quoted as saying that appointing Warren to the bench “was the biggest damn fool thing I ever
did.”133 Warren having heard this before got it confirmed in a conversation between the former
President and the Justice that left a different legacy then he had hoped. Warren described the
conversation saying,
I do not recall how the conversation started, but Eisenhower said he had been
disappointed in Justice Brennan and me; that he had mistakenly thought we were
“moderate” when he appointed us, but eventually had concluded otherwise. I
replied that I had always considered myself a moderate, and asked him what
decisions he was referring to.134
The difference in opinion about Warren’s position is highlighted as the Chief Justice believes he
has stayed true to his views and the former President saw his time on the bench as much more
liberal. Chief Justice Warren went on to ask about which cases the President was unhappy with
specifically and was told in no uncertain terms that the cases dealing with Communists were
handled too liberally, only to learn the former President had neither read the decisions nor cared
for Warren’s explanation of his judicial policy ending the conversation bluntly, “What would do
with the Communists in America?’‘I would kill the S.O.Bs,’ he said. I was sure this remark was
merely petulant rather than definitive, so I replied ‘Perhaps that could be done in the Army, but it
could not be done through civilian courts.” 135 This conversation shows a complete disconnect
133
Warren p. 5
134
Warren p 5-6
135
Warrens p 7
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between the Justice and President who appointed him. This only furthers Warren’s position of
holding more allegiance to the rule of law over the person who appointed him. Throughout all of
these examples,Warren stands out as a excellent example of the best case for the post-Johnson
model while happening in the era of Washington model appointments. However, not everyone is
Earl Warren. Not everyone could handle a dinner at the White House with the President pulling
them off to discuss a case, and not everyone would be able to thank the President who appointed
them only to be served a lengthy scolding for their decisions.
Earl Warren interestedly enough has a better relationship with the two Presidents of the
other party that follow his appointing President. In a letter from Chief Justice Warren to
President Kennedy, he thanks the young President for coming to his surprise birthday party,
noting that his clerks especially got a kick out of having the President come to the surprise party
they planned.136 One interesting point here is that the relationship may have been better since
Kennedy campaigned on many of the ideals that Warren was deciding in key cases, their judicial
views matched better than those of Warren and Eisenhower. Kennedy later invites all the justices
and their wives for a social dinner at the White House, in the thank you note for this event Chief
Justice Warren is very grateful and his language suggests that it was a much more social and
enjoyable evening as opposed to the pressure filled dinner with President Eisenhower. 137
President Kennedy in his relationship shows respect to the Chief Justice, gaining his respect in
return. This relationship seems to benefit Kennedy and following theories of presidential power
would yield him more influence with the Chief Justice. This courtship does not appear to yield
136Earl
137
Warren letter to the President, White House Famous Names, Earl Warren, WHCF, JFK Library
Earl Warren White House Famous Names file JFK Library
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any improper decisions or moments that are notable enough to be reflected in Warren’s memoirs,
in contrast with the multiple animus moments he experiences with President Eisenhower, who he
claimed to have always respected. 138
There is one last episode that comes from his unique position and relationships with two
Presidents that marks another lasting piece of his legacy, The Warren Commission. His selection
to chair the bipartisan independent commission to determine the facts of the Kennedy
Assassination makes sense for a wide variety of reasons, but this selection was not only simply
because of his role as Chief Justice, it is also deeply rooted in his connections to the presidency.
Justice Warren as discussed previously had both working and personal relationships with the
presidents during his tenure. In fact the night before John F. Kennedy left for Dallas, the Chief
Justice and entire Supreme Court were gathered at the White House, he even remembers in his
memoirs that they Justices “jokingly” warned the President to be careful around the told him to
“be careful down there with those wild Texans.” 139 He also remembers being asked to be among
the few that met Air Force One in Washington when the newly sworn in President and the body
of the former President were flown back to the Capitol. Finally, Jackie Kennedy personally
called him days later to ask him to speak at the Capitol building when her husband’s body would
lay in state. Through all of these anecdotes the Chief Justice remembers his close connection
with the President becomes clear, this alone would make him the right man to oversee the truth
finding commission to right the stories of his lost friend.
138
Warren p. 5
139
Warren p. 352
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His role as Chief Justice and his trustworthy reputation gained throughout his public
career made him the right choice for this commission, however his opinion on extra judicial
appointments caused him pause. Just as with Charles Evans Hughes and many others, the issue
of extra judicial appointments is an honor that consistently divides the minds of the justices.
Chief Justice Warren is no different, in fact as a student of Supreme Court history, he goes out of
his way to discuss the possibility of extra judicial appointments privately with each of his fellow
justices and studies the historical examples. When approached about the creation of this
commission, Warren made his opinions clear. He is told Johnson wants a commission, he thought
this was wise, but when told he was who Johnson wanted to lead it, he said he did not think he
should be selected. Explaining his reasoning the Chief Justice wrote,
First, it is not in the spirit of the constitutional separation of powers to have a
member of the Supreme Court serve on a presidential commission; second, it
would distract a Justice from the work of the Court, which had a heavy docket;
and, third, it was impossible to foresee what litigation such a commission might
spawn, with resulting disqualification of the Justice from sitting in such cases.140
His instinct to first point out the issue of separation of powers is backed up by his previous
actions. His view of separation of powers seems to follow somewhat of the same belief of Justice
Jay. Much like the first Chief, Warren cultivates a close personal relationship with multiple
presidents valuing this experience as outlined above, but sees a clear separation between this
private time and serving at the pleasure of the president. This can be seen especially in his strict
adherence to his legal views even when challenged and suggested otherwise at the White House
by President Eisenhower. The second point he makes, he later supports with his evidence from
many of the examples listed already in this research, such as the Hughes Commission and what a
140
Warren p. 356
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distraction to the Court that was and how over worked the Justices already were. In fact in this
reasoning, Warren goes further than Hughes in his belief of the need to keep this job on a
pedestal above other appointments. Warren explained how he saw Justice Jackson’s short leave
from the Court for Nuremberg distracting and how it created many divisions on the Court, he
even went on to discuss the Pearl Harbor commission and how its report did not produce enough
public good to warrant a Justice further burdening themselves. His final objection is one that is
both unique to this commission and is a new reason previous Justices had not discussed.141 This
reason can be traced back to his constitutional hesitations in taking this position. It is fascinating
to see the issue of separation of powers be so prevalent in this debate even after a long line of
precedent had been set of justices taking these positions. However, this is consistent with his
views of the law and with his moral character that is present in all of his opinions and moves as a
politician.
Lyndon B. Johnson’s skills at convincing people to do what he wants changes all of these
nerves. President Johnson finds an answer to each of these hesitations. Furthermore, President
Johnson, always planning had already picked an ideal commission and presents it to Warren
emphasizing that his leadership is the cornerstone of this commission. Johnson explains “You
were a solider in World War 1, but there was nothing you could do in that uniform comparable to
what you can do for your country in this hour of trouble.” To which Warren responded, “Mr.
President, if the situation is that serious, my personal views do not count. I will do it.142” This
highlights both Johnson’s skill as a negotiator and his personal knowledge of Warren, knowing
141 At
142
least not in their memoirs and other documents searched for this research.
Warren p 358
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that this response to his hesitation would change his mind. This also goes to the earlier concerns
of other justices that lead me to come to the conclusion that in the relationship dynamic between
justices and presidents, the onerous is on the president not to ask a justice to serve in a different
capacity as it puts the justice in a position where they cannot say no. This is typical of President
Johnson in his tactics. While Chief Justice Warren was hesitant, he made the right decision to
oversee this commission and Charles Evans Hughes and other prominent justices would support
his decision as well, due to the national importance of this commission.
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IVConclusion
Chapter 14. Final Thoughts
Justice Antonin Scalia and Ruth Bader Ginsburg provide a good pair to transition this
discussion to more modern discussions of this concept. First Justice Scalia, the former larger than
life conservative defender of originalist ideals of law and the constitution, had unique
relationships that bring up many issues discussed throughout this research. Most importantly, in
the wake of his death there have been a resurgence of discussions about his relationship with
former Vice President Dick Cheney. The event that called their social friendship most into
question was a hunting trip the two men were both apart of shortly after the Supreme Court had
agreed to take up a case involving Cheney’s impartiality when creating energy policy for the
Buch Administration, “in re Richard B. Cheney.” Justice Scalia responded to media questions
about the trip by explaining precedent explored in this research about social connections between
Presidents and Justices, stating,
Cheney was indeed among the party of about nine who hunted from the camp.
Social contacts with high-level executive officials (including cabinet officers)
have never been thought improper for judges who may have before them cases in
which those people are involved in their official capacity, as opposed to their
personal capacity. For example, Supreme Court Justices are regularly invited to
dine at the White House, whether or not a suit seeking to compel or prevent
certain presidential action is pending. 143
In this response, Justice Scalia explained the situation very much in line with how President
Johnson would have responded to inquiries about Justices Warren and Fortas visiting the White
House for a swim, the difference of course being the fact that Cheney was directly involved in a
case before the Court at the same time of this trip. Now this brings up the questions that
143
Savage, David G. 2004. "Trip With Cheney Puts Ethics Spotlight On Scalia". Los Angeles Times.
http://articles.latimes.com/2004/jan/17/nation/na-ducks17.
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American media, and political and legal scholars have been thinking about debating especially in
the post Fortas world. This is the exact scenario people who advocate for justices with little
connections to sitting presidents worry about. The trouble of course is that when nominating
Justice Scalia there would be no way to predict future presidents. Further while Scalia, Cheney,
and all the other attendees can claim the case was never discussed on this trip, it would be near
impossible to fully confirm this. But just as the Justice said, this is not a new phenomenon and
furthermore this is while it is of the utmost importance that the Justices be of the highest moral
standards and come to the Court with strong character. Through this research it has become clear
that one way for a president to guarantee this is to nominate someone they have a close personal
relationship with and can essentially publicly discuss their moral character from personal
experience.
Scalia’s closest friend on the Court and ideological opposite, Justice Ruth Bader
Ginsburg, when visiting Brandeis was able to provide me with a unique perspective on the
relationships studied throughout this research. One aspect she discussed that opened a new theme
to be explored is the fact that some Presidents have a particular goal in mind when nominating
Judges not just to the highest Court but also all federal courts that goes beyond politics and
personal relationships. For instance, she discussed that President Jimmy Carter who first
nominated her to the Bench aimed to put more women in Federal Judge positions and had he had
the opportunity to would have put the first woman on the Supreme Court. In fact, President
Carter had told Shirley Hufstedler she would be his pick, while she had resigned from the 9th
circuit to be the first Secretary of Education, she was told this would not keep her from the
Supreme Court if a seat were to become vacant. President Obama has followed a similar suit
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nominating many qualified judges to federal courts from diverse backgrounds to better reflect the
make up of the American population, his successful selection of two women, one hispanic, one
jewish, have served this goal even on the Supreme Court. Justice Ginsburg also discussed the
fact that current justices are still invited to dinners at the White House now and then and that she
very much believes these relationships are incredibly valuable and important. She mentioned that
some presidents try harder than others to cultivate these relationships. For instance, Justice
Ginsburg said that since President Clinton was very interested in constitutional law he hoped to
have a weekly meeting with all nine justices to discuss and debate the Constitution. This social
gathering rarely occurred due to the presidential schedule and later scandals. Justice Ginsburg
ended her response to these questions by highlighting the importance she sees in there being a
relationship between members of different branches of government. She highlighted an annual
dinner between the women of the Senate and women of the Court that brings together important
female leaders across party lines. She said that through these relationships the different branches
can be sensitive to the other’s concerns and needs, allowing the government to function at a
higher level.
President Reagan used relationships to choose nominees, while considering a short list of
names, and hoping to name the first woman to the Court, he not only considered the same
women that Nixon considered but then considered names provided by the Court. In fact, many
credit Justice Sandra Day O’Connor’s selection not simply to President Reagan but also Chief
Justice Rehnquist who lobbied the President on his friend’s and the Court’s behalf. Though his
influence over his Court did not rise quite to the level of Chief Justice Taft, Rehnquist was able
to argue that if a woman was to be named to the Court, he, many lawyers, and fellow justices
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believed O’Connor was the right selection. This is a representation of modern use of these
relationships and allowing them to influence government in a way that most would agree is
positive an beneficial for all.
President Obama has similarly reached out to members of the Court and while not
actively pursuing close relationships with justices, besides appointing two with whom he has
some familiarity, the Justices have not been too distant from the former constitutional law
professor. Most notably, when visiting the Court in his first term, President Obama was asked by
Justice Kennedy if he would want to come play basketball in “the highest Court in the land,”144
to which he responded that he had heard Justice Ginsburg had been working on her jump shot
and was worried he would get beat.145 President Obama’s relationship with the Court has been
interesting as much of his Presidency has been shaped by challenges in the courts to his policy.
For Instance, rarely does the crowning achievement of a Presidency, in Obama’s case the
Affordable Care Act, have not one but two chances to be struck down or dramatically changed by
the Court while he is in office. In both cases, Obama has seen his accomplishment upheld,
gaining political momentum from the Court’s ruling. President Obama similarly has gained this
kind of momentum after rulings on other cases such as the legalization of gay marriage,
prompting the President to make a Rose Garden press conference to celebrate a Court opinion.
While some of President Obama’s chances to select a justice will be explored in the final pages
The basketball Court in the Supreme Court Building on the top level of the highest Court of appeals in
America.
144
145
The Oath Jeffery Toobin https://www.washingtonpost.com/entertainment/books/the-oath-the-obamawhite-house-and-the-supreme-court-by-jeffrey-toobin/2012/09/14/ff9d4c54fb56-11e1-8adc-499661afe377_story.html
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of the conclusion, his relationship not only with the Court but also its justices can be very much
seen as a product of the successful and failed nominations and friendships of his predecessors.
Chapter 15. Conclusion
It has become more and more clear throughout this research that a relationship between
two prominent figures in different branches of government, more specifically the presidency and
the judiciary is not a red flag or a reason for fear but instead the ideal model for a functional
democracy under the constraints of the Constitution. In fact, this is and was how our government
worked for decades under the Washington model. A shift is now needed from a post-Johnson
model back to the Washington model, allowing for trust of presidents and justices. There have
been countless major scandals in the history of the presidency, issues of character, judgement,
and even treason, but these presidential moments have not stopped us from continuing to have a
presidential system, they have instead created different questions that guide our selection
process. In the same vein, we should not let an one bad relationship ruin the system that
produced such justices as Davis, Hughes, Frankfurter, Brandeis, and Thurgood Marshall. These
justices either legendary or quietly ethical jurists prove that the old model can work. There is
even a modern example that further proves how this can be done, Elena Kagan served as
President Obama’s Solicitor General, while this was not as close a job as others have been
promoted from in the past, it shows that the correct question is not whether or not there is a
connection between the justice and the president, but to what degree will that connection hinder
the independence of thought and decisions of the Justice.
Kagan further points to the success of the Washington model in another way. Justice
Kagan had not been a judge before joining the Court, in fact she followed the exact path
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Roosevelt wanted for Frankfurter. As Dean of Harvard Law School she made her name as a
prominent legal scholar, the President then appointed her as Solicitor General giving her
incomparable experience with the Court and then without appointing her to a Court of Appeals,
promoted her straight to the Court. Since this promotion, she has written about 12% of the
majority opinions, which is an admirable number for the most junior member of the Court,
showing her value and ability as a Justice.146 In comparison, fellow Obama appointee Justice
Sonia Sotomayor has only written 1% of the Court Opinions in her tenure, just about a year
longer than Kagan’s. 147 This goes to show that having someone who was a judge before their
appointment does not necessarily dictate how they will be as a justice. However, the postJohnson model has come to almost require prestiges lower appeals court judges as nominees.
This preference comes from the increasing politicization of the confirmation process that has
dissuaded presidents from trying to appoint top scholars or politicians they have a documented
relationship with drawing on the lessons of Fortas and the distrust of cronyism and the
government in general post Watergate. The polarization of the political process that is required to
appoint a Justice has completely limited and changed who gets appointed. In fact, while Obama
most likely has the ideal credentials to be a justice as he has served in both other Branches of
government and was a constitutional law professor before running for office, he could never
follow Chief Justice/President Taft’s example as his appointment would almost assuredly be met
with hostility.
146http://supreme-court-justices.insidegov.com/l/112/Elena-Kagan
147
http://supreme-court-justices.insidegov.com/l/111/Sonia-Sotomayor
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John Jay and Washington were able to guide a young country while remaining able to
disagree on certain constitutional questions but maintaining a working relationship and even
mutual advisory roles. President Lincoln and David Davis proved that when a President has a
strong history with a nominee that does not necessarily guarantee a corrupt justice. President
Eisenhower and Warren show that even choices made for political reasons do not tether a justice
to certain positions. All of these justices would most likely fail to be appointed today due their
political connections and relationship with the appointing Presidents, however each of them have
played key roles in judicial and legal history.
Similarly, Brandeis most likely would have been a failed nominee in the modern process
as he had possibly too many high profile clients and controversial cases. Some of these former
clients and opponents tried to stop his nomination, as previously discussed. Brandeis was one of
the first justices to go through a long drawn out confirmation process, although he did not attend
a single hearing. This helps show why he is the ideal model because even his confirmation fits
the today’s model. Even in a highly politicized climate and extra dramatic process, the Senate
eventually confirmed the President’s nominee. This process did not change Brandeis, like the
political circus that changed Justice Thomas from a very outgoing vocal jurist to one of the
Court’s quietest justices. Brandeis becomes the ideal model moreover because of his ability to
cultivate political and social relationships while also remaining independent and never
sacrificing his interpretation of the law for the benefit of a relationship. This independence and
reliance on facts, plays a role in gaining the respect of justices, lawyers, and politicians across
party lines. This allows him and Chief Justice Taft to go from legal opponents in the Pinchot
Ballinger Affair, to respected colleagues.
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To this end, Brandeis represents a modern realization of and improvement on the
relationship ideal that Washington and Jay played out. Brandeis like Jay was known by the
President prior to his appointment and like Jay advised the President on significant issues before
his nomination leading to their consideration for multiple positions not just justice. Furthermore,
both historic Justices, were able to continue to advise and socialize with other political elites
including the President once on the bench without compromising their position. Brandeis
improves on this model as he fully appreciated his role on the Court and is a justice in a time
when the Court’s role was more established leading him to dedicate himself to the Court and its
work more than Jay who became frustrated with his work on the Court and sought fulfillment
elsewhere.
While a majority of the Presidents discussed in this research are Presidents who in
Skowroenk’s view play key roles in presidential political history, it is not a requirement to be a
redefining reconstruction president to have a significant influence on the Court through
relationships. One of the best examples of this is President Taft, who in his own words is a fairly
forgettable president, but who wields unprecedented influence over the Court both by appointing
justices due to their relationship with and later himself gaining a seat on the Court and still
dictating the other justices appointed, eventually selecting his successor Charles Evan’s Hughes
who he had originally promised the Chief Justiceship many years before. It is important to
consider the implications justices and their relationships with presidents have on presidential
power theory, and especially, Skowronek’s, however his theory does not fully explain these
relationships and their significance. In fact some of the most important relationships to this
research came through presidents of articulation. Lyndon B. Johnson, a president of articulation,
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who acted more like he was a reconstructor used his relationships not only to guide his
appointments to Court the, sitting Chief Justice, and ultimately changed the way American sees
relationships between justices and presidents. This theory is however, helpful in understanding
that different presidents represents different political trends and therefore will have different
goals in their selections and relationships with justices. For instance, as presidents of articulation,
it would not be surprising if those presidents seemed to emulate the relationships the
reconstructing president had with their nominees and the sitting justices. This can be seen
especially in the previous example of Johnson, Johnson is the ultimate faithful son of Franklin
Roosevelt’s politics and policies. Roosevelt very much used his nominations to promote friends
and allies to the Court, while also cultivating close relationships with justices and using
nominees and justices for more than just their legal role, relying heavily on Felix Frankfurter
filling his new government administrations. To a similar end and even more so Johnson uses
justices like Fortas and Marshall for much more than their assigned legal tasks. Fortas stamped
nearly all major decisions at the beginning of Johnson’s presidency and ultimately resigns due to
his failure to recognize the separation of powers. Marshall, a prior Johnson administration
official, also can be seen and heard in phone calls cited previously counseling the President on
selections for many posts throughout government. Furthermore, while in his posts during the
Johnson years, Thurgood Marshall is often brought to the White House when the President is
meeting with key leaders of the Civil Rights movement, going above and beyond his job
descriptions and playing the role of an intermediary. Finally, in reference to this theory, it is also
interesting to note that Jimmy Carter, a president of disjunction, does not have the opportunity to
nominate a justice. While this is not true for all Presidents of this category, it is interesting,
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especially considering that according to Justice Ginsburg, Carter had a clear plan for who he
would want to nominate and wanted to put the first woman on the Court.
This research has also shown that Kernell’s presidential strategy of going public has
becomes an increasingly popular strategy over time in reference to nominations to the Supreme
Court. This strategy plays itself out especially in the nomination process today through the use of
planned or unplanned leaks to the media. This can be traced back especially to President Nixon
who began leaking his short lists of nominees to the media. This leaking of shortlists, however,
does not always say who the nominee will be and in many cases leaks names that will never be
nominated but that will soften the naming of the actual selection. By leaking names it allows the
public to explore nominees history and political alliances before the Senate even has time to
begin hearings. In many cases, as relationships with nominating presidents has become less and
less prevalent beyond Johnson and Nixon, the leaked list of names will include nominees with
closer ties to the president than the final selection. For instance after the death of Justice Scalia,
the lists of names leaked and rumored to be among President Obama’s favorites included names
such as Attorney General Loretta Lynch who has an extremely close working relationship with
the President. In reality, Garland, who was on some potential lists but often towards the end, had
much less of a close relationship with Obama and therefore seems somewhat more reasonable
and acceptable to the opposition party than the leaked names did.
After the Fortas scandal, especially in the Nixon years, there seemed to be an intense over
reaction to Justices with significant prior relationships with the President. This has created a
completely new new paradigm and today because of this, justices are even less predictable on the
bench than before. One example, today is Chief Justice John Roberts. Having come from a
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judicial Lineage stemming from Brandeis’ clerk Judge Henry Friendly, Roberts has to some
extent shown the independence of thought that Brandeis practiced, especially looking at his
judgements in the Obamacare cases. To this he is putting the reputation of Court above his
political preferences, often angering conservatives at the same time. This has lead to many
conservatives to start to say that President Bush was mistaken when nominating him to Chief
Justice thinking the young judge would oversee an era of long conservative opinions. This
represents a major new trend as presidents are less equipped to make claims about the long term
views and behavior of justices they do not have established relationships with. But this is also
leading to freer justices who have the chance to move for fluidly in their rulings based on law
and not simply their political believes and connections. Roberts, however does not mean all
justices who now have less connections to Presidents will come in a rule as swing justices, in
fact, Alito, Sotomayor, and Kagan have all ruled in a vast majority of cases in ways their
nominating Presidents would have expected. In today’s world where it is increasingly easy to
have covert communications and meetings amongst political elites, I can understand the fear that
nominating a Fortas will lead to even more corruption, however the overload of media
throughout television, print media, and the web would make this much much harder as some
staffer or clerk would inevitably leak the truth about the relationship.
Another trend that was discussed through the opinions of multiple Justices throughout
this research was the issue of justices overloading themselves with extra judicial posts, this is
something that has also changed fairly drastically since Charles Evans Hughes and most recently
since the Warren Commission. Today, it is rare to see justices take on extra assignments as the
Court’s workload has become increasingly demanding and taxing. Similarly, justices have
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created a schedule that allows for some outside work but on a much more limited basis. Over the
summer recess between late June and early October justices now take advantage of this time to
rest, make their way around the speaking circuit. Most recently and surprisingly, justice Ginsburg
has been announced to be making a cameo appearance as the judge overseeing Shylock’s trial in
a production of the Merchant of Venice, this summer in Italy.148 This is a rare and extreme
example of how the justices spend their time away from the Court, most just speak at law schools
and universities or relax with their families. There has also been less of a need for our justices to
take on other posts, as the number of political elites and qualified connected lawyers and experts
has grown, many posts that would have previously been filled by justices are now awarded to
others, who can dedicate more time to the cause. Along the same lines, since the Clinton
impeachment hearings there have not been any large events that either constitutionally mandate a
justice or rise to a level that a Justice would be expected to leave the Court to oversee.
Furthermore, with the development of international law there are a growing number of jurists
who specialize in this area. So if and when things that feel like the Nuremberg trials arise, current
justices are not tapped as there are other people who can provide similar services. While Charles
Evans Hughes spent time serving on an international tribunal in his years away from the Court, it
is not easy to foresee a sitting Justice leaving for the Hague anytime soon.
148
Siegel, Benjamin. 2016. "Justice Ruth Bader Ginsburg To Be In Appearance Inspired By 'The
Merchant Of Venice'". ABC News. http://abcnews.go.com/Politics/justice-ruth-bader-ginsburg-merchantvenice-production/story?id=37977521.
!95
Chapter 16 Merrick Garland
The nomination of Merrick Garland by President Obama to the Supreme Court provides a
further description of the direction the importance of these relationships studied in this research.
First and foremost, Garland shares an interesting lineage, qualifications, and character traits with
many of the justices studied and highlighted here. Garland’s judicial lineage traces back to
Justice Brandeis. Arguably one of Brandeis’ most successful and well known law clerks, Judge
Henry Friendly of the Second Circuit had Garland as a law clerk after Garland graduated from
Harvard Law School. Friendly is known as a feeder judge. As in many cases with the best of the
best clerks that work for feeder Judges, Garland then went on to clerk for Justice Brennan on the
Supreme Court. Following his clerkship Garland went on to begin his legal career at Arnold and
Porter a well known DC firm that formerly was Arnold, Porter, and Fortas before, Justice Fortas’
reputation was tarnished. Following being offered a partnership by this firm, Garland began his
career in public service as a prosecutor under a Republican President and worked his way to
being a senior prosecutor at the Justice Department ultimately resulting in his position
overseeing the entire investigation and prosecution of the Oklahoma City Bombing. Garland was
appointed by President Clinton to the DC Circuit Court, often referred to as the “second” highest
court in the land, a few years later he was nominated and confirmed to be the chief judge of this
prestigious court. Finally, when announcing his nomination, the President touched on an aspect
of his character that draws a comparison to Louis Brandeis, and points to the centrist voting
record of Garland. Obama claimed that his nominee “should possess an independent mind,” in
this requirement for nomination Obama has selected Garland for his independence that I
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identified as making Brandeis the model for his approach to relationships while on the bench.149
Looking at this storied career it is clear that Garland is one of the most qualified for this position
on the nations first highest court. This follows the pattern seen in recent successful nominations
and selections for the Court in the years after Fortas, today justices more and more come with
extensive or at least some judicial experience rather than selections like that of Chief Justice
Warren who had more political experience and had not served in a legal role in quite some time.
Garland’s nomination however is not just a product of his impressive resume, it also
represents a shift in the focus of relationships and qualifications. In announcing his selection
Obama stated,
I’ve selected a nominee who is widely recognized not only as one of America’s
sharpest legal minds, but someone who brings to his work a spirit of decency,
modesty, integrity, even-handedness, and excellence. These qualities, and his
long commitment to public service, have earned him the respect and admiration of
leaders from both sides of the aisle. He will ultimately bring that same character
to bear on the Supreme Court, an institution in which he is uniquely prepared to
serve immediately. 150
Here he highlights not only Garlands character reflecting many aspects of Brandeis’ but also
praises his relationships with political leaders across government and across both political
parties. Garland brings high praise from members of the law enforcement community from his
time as a prosecutor, he also brings praises from fellow justices. Judge Garland would not be the
first of Friendly’s clerks to make it on the Court, as Chief Justice John Roberts also clerked for
Friendly. In fact Roberts and Garland both ran the law review at Harvard law just a few years
Gerstein, Josh, and Seung Kim. 2016. "Obama Picks Merrick Garland For Supreme Court".
POLITICO. http://www.politico.com/story/2016/03/obama-to-announce-supreme-court-pick-at-11am-220851.
149
150
White House Press Release about Judge Merrick Garland’s Surpeme Corut Nomination, March 16,
2016 https://www.White House.gov/the-press-office/2016/03/16/remarks-president-announcing-judgemerrick-garland-his-nominee-supreme
!97
apart and served together on the DC Circuit court where Roberts has been quoted as saying “Any
time Judge Garland disagrees, you know you’re in a difficult area.”151 Besides having a
relationship with the Republican appointed Chief Justice, Garland also has immense support
from both sides of the aisle in the Senate. Obama claimed that each of the times he has had the
opportunity to nominate a justice both Republican and Democratic Senators have suggested
Garland, who made the short list when Kagan was nominated. Most notably, Republican Senator
Orrin Hatch, said at Garland’s first appointment “In all honesty, I would like to see one person
come to this floor and say one reason why Merrick Garland does not deserve this position.” He
has since said that Judge Garland would be a “consensus nominee” for the Supreme Court who
“would be very well supported by all sides.”152 Through his respect and relationships on the
Hill, in law enforcement, and even on the Court he has been nominated to, Obama has shifted the
focus even further from nominees with close relationships with Presidents to nominees with
close relationships in the other two branches, most importantly in the Senate. In this political
climate, especially as politics get more partisan and divisive as the 2016 election approaches, it
would be hard for Obama to nominate anyone with a strong connection him. In fact I would even
go as far as saying that any nominee nominated by this President will face intense opposition
even if that nominee were to be Scalia’s son himself. While this research has shown and argued
that relationships with the president can be powerful and good and even better when in a judge
with an independent spirit such as Brandeis’, the post-Johnson era will most likely continue
towards more nominees and Justices who have other relationships across the Senate, maybe even
151
Garland White House Press Release
152
Garland White House Press Release
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creating a new post Obama model. Garland, in my opinion, would be able to form the types of
relationships that mutually benefit the Court and and the presidents while remaining independent
and keeping our government working at its best. His nomination represents the full politicization
of the Court and where it may continue to head even beyond contentious election years where a
nominee must not only posses unquestionable qualifications but also posses strong relationships
across the both parties in the Senate. Long disappeared are the nominations of the Jays, Davises,
Fortrases, and judges selected primarily because of their critical relationships with the Presidents.
This research stands to show that Brandeis within the Washington model produced the most ideal
President Justice relationship and is a model to be duplicated. !99
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