Judicial Appointments: Controversy and Accomplishment

JOHN P. FRANK

Address to May 1976 annual banquet of The Supreme Court Historical Society

More than 125 times, the Senate of the United States has been called upon to advise and consent to a presidential appointment of a Supreme Court Justice. One hundred of the appointees were confirmed; the others were denied consent. (See article, "Robin Hood, Congress and the Court.")

This confirmation process is an American institution of infinite variety. For illustration of the short and the long of it, in 1869, President Grant appointed Lincoln's Secretary of War, Edwin M. Stanton, to the Court. Confirmation was immediate; four days later, Stanton died, before he ever took his oath. At the opposite pole, the fight over the appointment of Justice Louis D. Brandeis in 1916 lasted six months. Happily, the Justice made it worthwhile by serving twenty-three years.

Confirmation controversies have been of every complexion. They have been petty, as when in 1893 Senator David B. Hill of New York successfully blocked two Cleveland appointees from New York State because they were not politically satisfactory to the Senator; each of the two had been involved in uncovering corruption among the Senator's followers. When the second New York name went in and faced the same opposition, President Cleveland made very clear that if the New York Senators held their ground, there would be no appointment from New York. They did hold their ground and Cleveland appointed Senator Edward Douglass White, of Louisiana, who was confirmed within an hour.

Sometimes, opposition is wildly eccentric. Justice Frankfurter was a grand target for the lunatic fringe. Mrs. Elizabeth Dilling, author of a work popular in the 30's called The Red Network, opposed Justice Frankfurter as a communist. The following exchange took place:

SENATOR NEELY: Is it not a fact that in your book, The Red Network, you criticized Chief Justice Hughes, Justice Brandeis, Justice Cardozo, Justice Roberts, and Justice Stone as vigorously as you have criticized Dr. Frankfurter?

MRS. DILLING: I didn't know Hughes was in it. I knew the rest of them were. I don't keep all these radicals in my mind.

It was no wonder that when one of the witnesses informed the committee that he had facts which were "really surprising," Senator Neely replied: "The committee does not want you to restrain yourself because of any fear of its being startled. The committee became shock-proof long before you appeared."

Some of the disputes are party politics; neither President Tyler nor President Andrew Johnson could get anyone confirmed by a hostile Senate, and, indeed, the Senate reduced the size of the Supreme Court for the duration of Johnson's term to insure that he would have no appointments. Sometimes the controversies are peculiarly personal. When President Grant appointed his Attorney General, George H. Williams, for the Chief Justiceship, the appointment was shot down for a number of reasons. One of them was that Williams had used department funds to purchase a carriage with exceptionally handsome horses, handled by a driver with brass buttoned livery, although Mrs. Williams had purchased the buttons herself. Mrs. Williams had snooted a number of senatorial wives, a fact which did no good when the vote came.

When President Cleveland chose Lucius Quintus Cincinnatus Lamar, the first Confederate general to be proposed for the court after the Civil War, there was inevitably opposition on many fronts. One of them was a charge of connection between Mr. Lamar, then Secretary of Interior, and a Miss Mary McBride, unfortunately under indictment for burning down her house to collect the insurance money. When sex and arson cropped up in what had been a routine political squabble, the newspapers gave their full attention to the controversy. The New York Evening Telegram regaled its readers with "serious charge against the Secretary of the Interior--a lady in the case--alleged relations with a woman accused of arson."

Miss McBride wrote the committee to defend her character. She told it that her fortitude rose from "the undismayed confidence of guiltless courage, sustained by the omnipotent power that gave force to the tiny pebble hurled from the feeble sling of Israel's youthful flock-tender and through which I am emboldened to ask your aid against those ambushed assailants who seek through my misfortunes to make me the Delilah of their evil conspiring against the political Samson whose unshorn strength they thus attempt to weaken through disgrace." With appropriate reference to the action of the English Parliament in a similar case and with a neat allusion to Roman history, Miss McBride concluded. I have always felt that her letter displayed more the style of a southern gentleman than of a clerk in the government printing office, the position she held.

A continental divide in the nature of appointment controversies was crossed when President Hayes appointed Stanley Matthews, a railroad lawyer, in 1881. Matthews had strong support from his party and from good lawyers. Nonetheless for the first time an appointment was opposed on strict economic grounds. The opposition was precisely that Matthews was a "railroad lawyer." The California Anti-Monopoly League, the Pennsylvania Grange, even the New York Board of Trade and Transportation protested. The charges were that Matthews would "sustain the usurpation of monopoly," would bring the Supreme Court "under corporate control." Matthews was confirmed by a vote of 24 to 23, and from that day to this, the economic outlook of the nominee has been considered fair game for confirmation controversy.

From this welter of miscellany can any general guiding principles or perceptions be found? I think so, and this evening I shall develop a proposition which I shall cheerfully name Frank's Law of Supreme Court Confirmations. This law, which is not quite as immutable as a principle of physics but which nonetheless is sturdy enough to stand, is that the greater the controversy over the appointment, the greater the accomplishments of the Justice.

Before I demonstrate factually that my maxim is true, and before I engage in some speculation as to why this is so, let me clear a little underbrush. Frank's Law does not say either of these two things:

1. It does not say that no one can be a great Justice unless his confirmation is controversial; it does not even hint in this direction. There was no controversy over the confirmation of John Marshall or of Holmes, or of Cardozo, to speak of only the vanished great.

2. The law does not embrace as a subsidiary even the smallest suggestion that every appointee whose confirmation is controversial becomes a great judge. For clear illustration, two appointees whose confirmation was intensely controversial were Peter V. Daniel in the nineteenth-century and James Clark McReynolds in the twentieth. Daniel, then a federal district judge in Virginia, was appointed by President Van Buren upon the extraordinarily fortuitous death of Justice Barbour, also of Virginia, which occurred only eight days before Van Buren's term expired. Since Democrat Van Buren was to be succeeded by Whig Harrison, the President had every impulse to put an appointment through quickly and on February 27, 1841, before Barbour's funeral, the President sent Daniel's name to the Senate. The Whigs stalled, but the full-scale filibuster was not yet in vogue. Finally, late on the night of March 2nd, just two days before Van Buren's term expired, Senator Henry Clay, the Whig leader, saw his chance to break the quorum. Ostentatiously picking up his hat, Clay said to the presiding officer, "I bid you good night." Almost all of his fellow Whigs marched out with him. The Sergeant at Arms went out to the bars and the bedrooms rounding up Democrats and by 11:00 o'clock at night there were 27 senators on the floor. Twenty-six were Democrats, and one was a Whig. The Whig faced a terrible dilemma. If he withdrew, he would break the quorum, but there would be no one left on the floor to make the point of no quorum. If he stayed, he would himself make the quorum. He stayed, voted against the appointment, and just before midnight Daniel was confirmed.

McReynolds also had a good deal of trouble. As Wilson's Attorney General he had been a little lax in enforcing the Mann Act against the son of a prominent politician in California. This raised a fuss at confirmation time and required McReynolds to take vigorous steps. The result is the famous case of Caminetti v. United States, the decision holding that the Mann Act covers transportation of a sexual companion in interstate commerce, not merely for profit but also solely for pleasure.

The point of these illustrations is clear enough: even as Daniel's friendly biographer, I cannot put him in the galaxy of the great; the plain truth is that despite both his earnest if plodding career and my book, 99% of the persons within the sound of my voice have never heard of him. As for McReynolds, the whole thing was a mistake from the beginning.

So much for the underbrush. I am asserting that there is a correlation between controversy and accomplishment and that most Justices who were subject to serious confirmation battles made outstanding records on the bench.

We could illustrate from the nineteenth-century, in which one of the hardest fought confirmation battles concerned Chief Justice Taney; but in the interest of banquet brevity, I shall take the last 60 years. For the second decade of the century, 1910 to 1920, the major controversy was over the Brandeis appointment. For the third decade, the major fight was over Harlan Stone, though there was some rumpus about Pierce Butler as well. Between 1930 and 1940, there were three major disputes, Chief Justice Hughes and Justices Black and Frankfurter. It will be noticed that I am not speaking of the potentially great appointments which were in fact rejected, Judge Parker in the 1930's and Judge Haynsworth in more recent times. In the 1940's the main contest was over Justice Clark and in the 1950's over Justice Harlan. In the 1960's, the appointment of Abe Fortas as a Justice led to a confirmation controversy; the most recent moderately disputed appointment, that of Justice Rehnquist, came in 1971.

The names I have listed include some of the foremost figures of American law in the twentieth-century. The game of pick the ten greatest justices has never appealed to me much, but the names of Brandeis, Stone, Hughes, Black and Frankfurter are surely names of stature in American legal history. Justice Butler represents the absolute essence of the strong conservative Justice; there was both perception and generosity in then-Attorney General Jackson's memorial observation on Butler when he said, "Across that gulf, which always exists between two men who regard each other as representing ominous trends, I felt the strength, the warmth, and the sincerity of a great character--one of the most firm and steady men I have known...." Justice Clark served with great effect in this building, but outside it, in the entire national field of judicial administration, he was truly a sort of one-man gang, single-handedly accomplishing more than the entire Court of which he was a part. Justice Harlan brought sterling distinction to his work, and Justice Fortas was on his way to real greatness when he left his post here. Justice Rehnquist is already earning well-warranted acclaim.

Most of this audience is sophisticated in Supreme Court history or it would not be here. Is it not apparent that we are on to something? In the past 60 years there have been 36 appointments and confirmations. Ten of those appointments have engendered distinct controversy at the confirmation; I am aware that I am putting aside a few, as for example the matters of Justices Brennan and Stewart, where it seems to me that the controversies were too minor to deserve much talk. Justice Brennan could be pardoned if, in the light of his brush with Senator McCarthy, he took another view of this. Nonetheless, we have here a list of Justices, the least distinguished being first class and some of them the foremost figures ever to sit on this court; all were subject to real confirmation disputes. Frank's Law, I submit, is clearly sustained on the evidence; indeed, the three most controversial appointments in this list of ten are those of Brandeis, Hughes and Black, and all three would be on any scholar's list of the ultimate immortals.

Is there some connection here? The corollary between confirmation controversy on the one hand and judicial accomplishment on the other is demonstrated. Why does the condition exist?

The answer emerges, I think, from a glance at the controversies in each case.

The very first, the Brandeis appointment, puts us on the track of understanding. Brandeis had richly earned both his appointment and his enemies. In 1910, as a kind of special counsel for conservation, Brandeis had done as much as any man in America to bring down the Taft administration. It is not hard to understand why six years later former President Taft and his former Attorney General, George Wickersham, fervently opposed the Brandeis appointment. Moreover, Brandeis had been the principle opponent in Massachusetts of the New Haven Railroad, an affiliate of J. P. Morgan & Company. The publisher of both Barron's Weekly and the Wall Street Journal was directly in the pay of the New Haven. There was no issue of competence in the Brandeis case--he was obviously one of the best lawyers in America--but charges as to how he had handled his business kept the Senate in a turmoil for months. I pass over the details--I have written a lengthy article on them in the Stanford Law Review ten years ago if anyone wishes to relive those passionate days, but the explanation seems clear enough. There is some suggestion that if Brandeis had simply been a little more amiable, a little more companionable, he might have escaped the fire, but I doubt it; his enemies would have sought to cut him to shreds whether or not he had been the gayest of the lads at the lawyers' club. The New Haven Railroad, the United Shoe Company, and President Taft had felt the full lethal force of Brandeis' power. They and those with them who hoped to regain political power at the election of 1916 fought a hard fight against the nomination.

With Butler, the pressures were of the exact opposite sort. Butler, as a Minnesotan, represented old line railroad power and conservatism in a state which had just elected a farm-labor senator. Butler had also been a dominant member of the Board of Regents, where he had served during World War I and immediately thereafter. Butler was not one to take wartime disagreement or postwar radicalism lightly, and he had a propensity for seeing these evils where more temperate souls might not have been alarmed. He came to his appointment an obvious mix of an able lawyer, a railroad tycoon, and a campus tyrant. His enemies made much of his failings. While the vote for Butler was heavy, the tussle was real.

In retrospect, it is hard to realize that the main opposition to the Stone appointment came from liberals who saw Stone as a reactionary tool of President Coolidge. There were three main charges, one that as Attorney General, he had harrassed Senator Burton K. Wheeler of Montana with a dilatory prosecution for alleged corruption to smear the Progressives; the second that while in private practice, he had been guilty of unethical conduct in a particular case; and the third that he had been a "Morgan attorney" and was therefore unfit to hold any office. With one cabinet member of Harding's administration on the way to the penitentiary, another forced out of the cabinet for almost-criminal stupidity, and a third under greatest suspicion, some senators found it easy to suspect the worst of Stone.

The obstructions were smoothed away because on examination there was no fair ethical criticism of the case in question and because Senators Walsh and Wheeler of Montana worked out with Stone a satisfactory venue for the Wheeler prosecution. In the course of it, the Senate recommitted the Stone appointment to the Judiciary Committee to allow a complete investigation of the Wheeler matter. As a result, for the first time in United States history a Supreme Court nominee came before the Judiciary Committee for examination, in the last forty years, this practice has become routine. The chief examiner for the Committee was Wheeler's counsel, Senator Walsh, also of Montana. As the Stone hearing went on, Walsh and Stone dropped all pretense of being Senator and Court nominee; as two lawyers, in the very hearing record, they negotiated a date for the Montana trial. Confirmation then easily followed.

The Senate debated the nomination of Chief Justice Hughes for five days in February of 1930. This was in the midst of the Great Depression, and there emerged in complete form the economic interpretation of the Court. Senator Norris set the frame for the debate in his first remarks when he said, "Perhaps it is not far amiss to say that no man in public life so exemplifies the influence of powerful combinations in the political and financial world as does Mr. Hughes." The nomination was finally confirmed, but with a large dissent.

From the functional standpoint, the Black controversy was almost identical with the Brandeis dispute. Black, as Senator in the first Roosevelt administration, had been a strong and, indeed, extreme voice of liberalism. He was the sponsor of the 30-hour-bill which in due course became the Fair Labor Standard Act. He was the Senate's principal investigator of corporate misdeeds. The types of enemy Brandeis had, Black had too. The form of the opposition lit on what must be respectfully regarded as a pretext, just as with Brandeis. In Black's case it was the fact that he had in 1925 been a member of the Ku Klux Klan, an organization from which he had resigned before he ran for the Senate in 1926, and which he never rejoined. This was perfectly well known in Alabama, but at the time of the appointment it was "discovered" by the press. In Black's case the main public blowup came after confirmation, and there was much pressure for withdrawal. Black, speaking to the largest audience which had ever heard an American up to that time, quieted the storm with a radio address.

With Justice Frankfurter, the charge that he was a dangerous radical evoked very extensive hearings. With Justice Clark, it was the reverse, a contention that he was a dangerous conservative, and this also evoked extensive hearings. With Justice Harlan, the claim was that he believed in Union Now, a kind of alliance with England. If ever a strictly professional advocate was appointed to the Supreme Court, it was Justice Harlan, and his life had indeed been remote from the problems of international relations; but there was a very substantial storm of opposition all the same. Justice Fortas, it was charged, was too close to President Johnson, too radical, and later, when he was proposed for Chief Justice, unduly involved in advising the President. The latter charge was singularly weak on the historical facts, but it was effective rhetoric all the same.

With Justice Rehnquist, the charge was that he was a conservative extremist, and, indeed, that he was somehow linked to the John Birch Society. There was also a charge that somehow at some earlier time he had been racist. There were also charges of election corruption. All these charges were, to my own personal and certain knowledge as a resident of the same city as the appointee, utterly baseless but they were fervently made and extensively explored all the same.

I do not want this little recital to be taken as a criticism of the confirmation process. There have been some terrible errors in that process, but it is the only means the people have of taking hold, even for a moment, of an institution which powerfully affects their lives. While some of the attacks are appalling--one thinks here of the outright abuse of Justice Thurgood Marshall, especially when he was appointed to the Court of Appeals for the 2nd Circuit and the petty efforts to humiliate him when he came to this Court--there are some virtues too. Not only have we some reasons to be comforted by the operation of the system in connection with one rejection in recent years; we have substantial reason to believe that there is tight scrutiny of potential nominees because of the prospect of confirmation hearings.

Nonetheless there are controversies, and some of them have involved outstandingly fine Justices. I do not in the slightest degree attribute the excellence of the Justices in fact to the grueling confirmation ordeal. The notion that somehow it is good for them, I think, is pious pap.

What I suggest as the true explanation of Frank's Law is simple enough: Of the ten controversial appointments I have listed, only one came to this Court from the bench; that was Justice Harlan, who had served only briefly. The fact is that the men who have been movers and shakers of events after they came to this Court were functioning as movers or shakers of events before they came to this Court. The same vigor and power and effectiveness that have made them significant here also made them significant before they came here. To take three of the most conspicuous examples, Brandeis, Hughes and Black were prodigious giants on the national scene before they put on the judicial robe. Prodigious giants on the national scene make friends, but they also make enemies; they are admired, but they are also feared. I come back to my observation of a moment ago on Justice Brandeis; the great Justice had earned his appointment, but he had also earned his enemies.

If an appointee has been a figure of great accomplishment on the national, political or economic stage before he comes to this Court, that same track record makes it likely that he will be a person of accomplishment here. I am aware of course that some misfits turn up here who do not successfully bridge the gap even though they have been men of great power and stature in earlier public life. It would be petty treason in these halls to name names, and so I shall simply note the intriguing fact that in the main such instances of the past 35 years there were no confirmation controversies.

The true meaning of the confirmation process is that where a very strong figure is appointed from some form of non-judicial public life, if he has been strong enough and active enough and conspicuous enough and effective enough, he will have enemies. This will make a confirmation controversy. If the appointee survives that controversy, he will almost assuredly make a very fine Justice.

Copyright 1976, Supreme Court Historical Society