A NOTE ON THE "JOE COTTON STORY"

James M. Buchanan

Of all the stories that surround the Hughes appointment in February, 1930, perhaps none is so intriguing and undying as the "Joseph Cotton Story."

The story first appeared 1935 in a New Yorker article by Henry Pringle, Chief Justice Taft's authorized biographer. Pringle wrote:

"On February 3rd, 1930, Chief Justice Taft shattered in body and apprehensive that he could no longer carry on the duties of the Court, submitted his resignation. It had to be accepted. Mr. Hoover, according to the best information, desired to promote Associate Justice (Harlan Fiske) Stone, his close friend. He confided this to the late Under Secretary of State Cotton, who said that it was out of the question to pass over Mr. Hughes. But Hughes, he added, would not accept. He was earning enormous fees in private practice. Besides, Charles E. Hughes, Jr., would have to resign as Solicitor General if his father became Chief Justice. `Offer it to Mr. Hughes,' suggested Cotton. `He'll decline and then you can pick Justice Stone.' It was offered to Hughes and he promptly accepted."1

While this story "greatly disturbed" Hughes and caused him to consider writing to ex-President Hoover about the matter, he nevertheless "let it pass."2

Two years later, the story again resurfaced, this time in Drew Pearson and Robert S. Allen's The Nine Old Men.3 The publication of The Nine Old Men not only caught Hughes' attention but Hoover's as well, prompting the ex-President to write Hughes a denial.4 In the intervening two years the story had been embellished. Instead of Pringle's sparse account, the Pearson story contained dialogue between Cotton and Hoover. It also contained errors.

First, according to the Pearson account, Cotton was called to the White House "shortly after Chief Justice Taft died," which would have been after March 8th, 1930. The Pringle story has Cotton arriving after Taft's resignation on the 3rd of February. Secondly, in the Pringle story, Cotton reminded the President of his obligation to Hughes, whereas in the subsequent Pearson account, Hoover reminded Cotton. The addition of dialogue may or may not be a device by Pearson, but one wonders where he received such descriptive information.5

The story continued to make the rounds long after Stone and Hughes had died (Cotton, the source of all this, died in early 1931). The story seems to have been retold to Alpheus T. Mason as well as to Mrs. Harlan Fiske Stone in 1950.6

In 1949 the controversy again erupted upon the occasion of Merlo Pusey's research into the incident. In an exchange of letters with Pusey, William D. Mitchell, Hoover's Attorney General at the time of the Hughes appointment, denied the veracity of the Pringle and Pearson accounts.7

The debate continued in 1956 with the publication of Dexter Perkins' Charles Evans Hughes and American Democratic Statesmanship.8 Hoover sent Perkins a denial of the story sometime after the review of the book appeared in the Saturday Review of July 28, 1956.9 The Perkins book also generated a twenty-page exchange between Supreme Court Justice Felix Frankfurter and Merlo Pusey. Frankfurter claimed that Cotton told him of the incident within a day or two of its occurrence. Frankfurter found Mitchell's denial of the story and the account given to him to be not mutually exclusive. The question, Frankfurter held, revolved around the telephone call. Frankfurter insisted that the call took place on January 30th and "the result of it [was] Hughes came down from New York and had . . . breakfast" on the 31st.10

That Hughes did have breakfast with Hoover is not denied by any of the parties involved. "My guess," Frankfurter continued, "is that Hughes did not accept unequivocally over the phone but that the shrewd Cotton rightly inferred that when he came down to see the President . . . he would allow himself to be persuaded by the President to accept."11

What Cotton did not know was that Associate Justices Willis Van Devanter and Pierce Butler, anxious to carry out the dying Taft's wish for a particularly qualified replacement, had arranged to meet with Hughes on the 28th of January. Meeting at Hughes' New York City apartment, Van Devanter and Butler approached Hughes with the nomination proposal.12 Ascertaining that he would accept if offered, they immediately informed the President, through Attorney General Mitchell, of Hughes' interest.13

Frankfurter does shed new light on the subject. He claims that the Hoover-Hughes conversation on the 30th did not amount to an offer "and correspondingly there was nothing said by Hughes at the other end that could be called an acceptance."14 Frankfurter believed that the conversation indicated to Cotton that Hughes would accept the nomination if Hoover offered it to him. Frankfurter pointedly avoids the story of the offer being made over the phone on which Pringle and Pearson base their stories.

According, therefore, to Frankfurter's account, Hoover did not "make an offer" over the phone to Hughes on the 30th, but merely invited him down to Washington to discuss the nomination matter further. Thus, Hoover would have been acting consistently with information he received from those at the Van Devanter-Butler-Hughes meeting of the 28th that, if offered, Hughes would accept. Cotton, unaware that Hughes had already been approached and had been given time to consider the appointment offer and to consult with his son, was probably surprised at Hughes' willingness--and seeming callousness--to meet with the President to discuss the nomination. The story repeated in the Pearson book which had the President looking at Cotton "in astonishment" and saying "Well, I'll be damned! Can you beat that? The old codger never even thought of his son" is apocryphal.15 Frankfurter never defended it. "The central issue," Frankfurter wrote, "[was] whether Cotton had such a talk with President Hoover"--not over an offer.16

Notes

1 H.F. Pringle, "Profiles," The New Yorker, July 13, 1935, p. 19.

2 Charles Evans Hughes to Herbert Hoover, 2-20-37, Post-Presidential-Individual, Box 370, Herbert Hoover Presidential Library, West Branch, Iowa.

3 Pearson and Allen, The Nine Old Men, (New York, 1936).

4 Hoover to Charles Evans Hughes, 1-19-37, Post-Presidential-Individual, Box 370, Herbert Hoover Presidential Library, West Branch, Iowa.

5 Pearson and Allen, The Nine Old Men, p. 74.

6 Alpheus T. Mason, Harlan Fiske Stone: Pillar of the Law (New York, 1956), pp. 835-836, f.n. 46.

7 Merlo Pusey to William D. Mitchell, 10-20-49; Mitchell to Hoover, 10-21-49; Hoover to Mitchell, 10-25-49; Mitchell to Pusey, 11-7-49; and Pusey to Mitchell, 11-12-49, William DeWitt Mitchell Papers, Box 7 .M682a and Box: Hoover, Spencer and Sullivan Correspondence, Minnesota Historical Society, Minneapolis, Minnesota.

8 Dexter Perkins, Charles Evans Hughes and American Democratic Statesmanship (New York, 1956).

9 Hoover to Dexter Perkins (ca. August, 1956) Post-Presidential-Secretary, Box 188, Herbert Hoover Presidential Library, West Branch, Iowa.

10 Felix Frankfurter to Merlo Pusey, 11-14-56, Felix Frankfurter Papers, Box 147, Library of Congress.

11 Felix Frankfurter to Merlo Pursey, 11-27-56, Ibid. In Hoover's personal engagement calendar he noted that he saw Cotton on January 11th and 14th and on February 3rd. For the famous telephone conversation to have taken place, Cotton had to be at the President's office on January 30th. It must be noted, however, that the President's engagement calendar has numerous gaps between appointments, so it cannot be held as conclusive evidence that Cotton did not visit with the President on that day. President's Personal File, Box 167, Herbert Hoover Presidential Library, West Branch, Iowa.

12 Merlo Pusey, Charles Evans Hughes (New York, 1951), Vol. II, p. 651. See also: Beerits Memorandum, 1-28-30, Charles Evans Hughes Papers, Box 80, Library of Congress.

13 William D. Mitchell to Merlo Pusey, 11-7-49. Quoted in Pusey, Charles Evans Hughes, p. 651.

14 Frankfurter to Pusey, 12-20-56, Frankfurter Papers, Box 147, Library of Congress.

15 Pearson and Allen, The Nine Old Men, pp. 74-75.

16 Frankfurter to Pusey, 12-10-56, Frankfurter Papers, Box 147, Library of Congress.


Copyright 1981 by the Supreme Court Historical Society