Merlo J. Pusey

Since the hardy myth regarding the nomination of Charles Evans Hughes as Chief Justice in 1930 has been dignified by extensive reiteration in the Supreme Court Historical Society Yearbook, a dispassionate review of the facts seems to be in order. The allegation is that President Herbert Hoover offered Hughes the position as a political gesture, expecting him to decline, and that Hoover's real intention was to name his closer friend, Justice Harlan F Stone. If that version could be sustained, a vital era in the history of the Supreme Court would have to be attributed to a presidential miscalculation.

The source of this myth is a story told by Under Secretary of State Joseph P. Cotton, who is said to have been with President Hoover when word reached him that Chief Justice William Howard Taft was about to resign because of his critical illness. Cotton is said to have remarked that this would give the President a great opportunity to make his friend Stone Chief Justice and then to appoint Judge Learned Hand to the Supreme Court vacancy thus created. Hoover is said to have replied that he felt an obligation to offer the place first to Hughes, but Cotton insisted that Hughes would not accept such an offer because it would necessitate the resignation of his son, Charles Evans Hughes, Jr., as Solicitor General.

Relying upon that assumption, Hoover is said to have made the offer to Hughes by telephone and to have been embarrassed when Hughes snatched up the prize immediately without thinking about his son. Cotton told this version to a number of friends, including Felix Frankfurter, and it ultimately found its way into various publications. As facts have come to light from various different sources, however, the tale has suffered repeated amputations until there is not much left of it except the grim determination of a few die-hards to cling to the shreds.

When the Cotton story came to the attention of Hoover in 1937, he flatly denied its substance in a letter to Chief Justice Hughes: "I scarcely need to say that no such conversation ever took place, and your recollection will confirm mine that I never had any telephone conversation with you at all on the subject."[1] Hughes thanked the former President for his comment and asked permission to quote it to Henry F Pringle, who was writing the Taft biography, because Pringle was one of those who had publicized the Cotton story. Hoover then wrote Hughes a more extensive letter (after checking his presidential files) in which he said that he had discussed the appointment of a successor to Taft with Attorney General William D. Mitchell and one other person but not with Cotton. "Mr. Cotton was Under Secretary of State," Hoover wrote, "and had nothing to do with judicial appointments."[2]

This direct conflict between the memories of Hoover and Cotton can scarcely be resolved by testimonials regarding the veracity of the two men or by buttressing the unquestioned reputation of Justice Frankfurter for telling the truth. It is quite conceivable that Hoover did talk with Cotton about the approaching vacancy in the chiefjusticeship and then forgot about it because he was looking to Mitchell for an official recommendation on the subject. But Cotton's assertion that Hoover offered Hughes the chief justiceship by telephone and got an immediate acceptance cannot be reconciled with the known facts.

Of course there was a telephone call from the White House to Hughes in New York. Hughes answered the call while one of his legal associates, Ernest L. Wilkinson, was in the office. Wilkinson heard nothing that could be interpreted as an acceptance of the chief justiceship. But Hughes did accept an invitation to meet with the President, and he apparently surmised what Hoover wanted to talk about. As Hughes put down the telephone receiver he told Wilkinson, "Hold up that opinion. It may not go out."[3] An invitation to the White House while the chief justiceship was known to be under consideration because of Taft's grave illness was sufficient to put Hughes' legal advice beyond the reach of any private client.

Beyond this persuasive evidence that there was no offer or acceptance by telephone are the statements and conduct, of Hughes himself. When he ate breakfast with the President on January 31, 1930, he had not made up his mind whether he would accept the onerous task of presiding over the Supreme Court if it should be offered to him.[4] Hoover began the consultation by saying that Taft's resignation had not yet come in but it would undoubtedly be forthcoming. Robert A. Taft, son of the Chief Justice and later Senator, had gone to the White House to report on his father's condition, and members of the Court had informed the Attorney General that Taft would resign as soon as the President was ready to nominate a successor. Hoover explained that he wished to be ready with a nomination as soon as the resignation came in "and thus prevent all the political pulling and hauling that takes place over an open vacancy."[5]

Instead of jumping at the bait, Hughes protested that he was too old to take on the responsibilities of the chief justiceship. Within three months he would be sixty-eight. It was highly desirable for the new chief justice to be younger so that he could expect a substantial period of service. A second reason why he should not accept the position, Hughes said, was that his son would have to resign as Solicitor General.[6] His third argument was that he had "earned the right to finish his life in peace."

Hoover swept away these arguments, saying he was eager to keep Charles Junior in the government and would find him another position of equal importance. The main thrust of his argument was that the country would expect the position to go to Hughes and that it was Hughes' duty to accept it. Finally, he noted that Taft would more readily resign if he could be assured that Hughes would succeed him. Taft was known to be opposed to the elevation of Justice Stone to the seat under the eagle because he feared that Stone would have difficulty in "massing the court,"[7] a fear that proved to be well founded when Stone ultimately succeeded Hughes.

At the end of a prolonged discussion, Hughes told the President that he would accept the position if there were reasonable assurance that his nomination would not provoke a fight in the Senate over his confirmation. Having been active in Hoover's 1928 campaign, Hughes feared a political Donnybrook of the type that did later break loose, but Hoover was reassuring on this point. It is unmistakably plain that there was no acceptance of the President's necessarily tentative offer until the end of the January 31 conference at the White House.

Promoters of the Cotton story make much of Hughes' failure to mention his reluctance to displace his son in his Biographical Notes, but there are many gaps in these notes, which were never intended for publication. Hughes emphatically rejected all proposals that he write an autobiography on the ground that "autobiography almost invariably becomes apologia,"[8] which he wished to avoid. His Notes were prepared for the benefit of his authorized biographer, who turned out to be myself. One of the first things he said to me, as he released a segment of his Notes into my hands, was that they should never be published. They later turned up in book form only because the Library of Congress carelessly permitted the copy which I entrusted to it for safe-keeping to be transcribed for publication despite an explicit reservation forbidding any such use. To supplement his incomplete Notes in the preparation of his biography Hughes made himself available for interviews, usually weekly, over a period of two and a half years. In those interviews he talked about his appointment as Chief Justice in great detail on several occasions in terms that riddled the Cotton story.

No one who knew Charles Evans Hughes intimately, moreover, would accuse him of failure to remember the interests of his son. Hughes was primarily a family man, who was deeply in love with his wife, Antoinette Carter Hughes, and ultra-sensitive to the welfare of his children. Charles Junior had been his partner in the practice of law, and Hughes was highly gratified by the naming of his son as Solicitor General, despite the resulting contraction of his (the elder Hughes') legal practice as a result, because most of the cases he had been arguing were against the government. When the question of the chief justiceship arose, Hughes allowed himself to be persuaded by Mrs. Hughes and the President in spite of the repercussions upon his son. It was a case of putting first things first regardless of unfortunate side effects. Half-baked journalistic reports and snide gossip cannot stand against the overwhelming evidence that Hughes did not forget his son's welfare in those crucial hours of decision.

In gathering data for my biography of Chief Justice Hughes I necessarily put the Cotton story under close scrutiny When I brought to his attention the reports that he had accepted the chief justiceship on the telephone, he snorted with irritation. "How ridiculous," he said, "to suppose that the President would make an offer of this kind over the telephone."[9] He went on to say that in the telephone conversation asking him to come to the White House there was no mention whatever as to the purpose of the requested visit.

My publication of facts that watered down the Cotton story led to a rather extended controversy with Justice Frankfurter. On November 14, 1956, he wrote me a letter saying that he continued to believe the Cotton story. I replied citing what seemed to me positive proof that Hoover could not have expected Hughes to decline when the offer was made. The Justice replied at length, and I did likewise. The exchange ran on through several more additions. It is worthy of mention here because Justice Frankfurter made several important concessions while clinging to what, for him, was the central point– that Cotton did discuss the nomination of a successor to Taft with the President. But the Justice withdrew from the contention of other purveyors of the Cotton tale that the chief justiceship was offered and accepted by telephone. On December 10, 1956, he wrote me: "I dare say there was nothing in that talk that could with precision be called an offer, and correspondingly there was nothing said by Hughes at the other end that could be called an acceptance."[10]

This obviously upsets the spite-laden conclusion that Hughes snatched the prize impulsively without so much as a thought about the consequences for his son. About the only thing Justice Frankfurter clung to after being confronted by all the evidence available was a belief that Hoover did talk to Cotton about selecting a successor to Taft and that Cotton did suggest the nomination of Stone after a first offer to Hughes, which he would decline. Frankfurter wrote me on November 27, 1956:

That inference is rather spongy in the face of the fact that Hughes was not told what the President wished to see him about. But there is very little historic interest in Mr. Cotton's thought processes. If he did recommend a tongue-in-cheek offer of the chief justiceship to Hughes, and if he did interpret the invitation to Hughes to come to the White House as an acceptance on his part of an office that had not been mentioned, his reckless comments and assumptions apparently made no impression on Hoover, who didn't even remember talking to Cotton on the subject.

One other aspect of the 1930 appointment demands substantial weight in the scales of history The key presidential adviser in regard to judicial nominations was not Cotton but Attorney General Mitchell. When members of the Supreme Court informed Mitchell that Taft would resign as soon as the President was ready to name a successor, Mitchell reminded Hoover that he "would be confronted soon with the most important appointment that he would have to make as President, the appointment of a new Chief Justice."[12] Is it conceivable that Hoover would ignore the Attorney General in filling that position?

There was no doubt in Mitchell's mind as to who the new Chief Justice should be. Hughes was unquestionably the nation's leading judicial statesman, but Mitchell did not wish to make an official recommendation without some indication as to what Hughes' response would be. He persuaded Justices Willis Van Devanter and Pierce Butler to sound out Hughes, which they did at a dinner in his New York apartment on January 28. While no details of this conference are on record, it is reasonable to assume that the two justices conveyed to Hughes the hope of Taft that Hughes would be his successor. What is known is that they reported to Mitchell an impression that Hughes was favorably disposed toward the offer if it should come.

With this green light for his objective, Mitchell went to the White House and recommended Hughes for the place. Since Hoover discussed no other potential nominees with the Attorney General, he concluded that the President's thinking paralleled his own. Hoover asked if Mitchell thought Hughes would acquiesce, and Mitchell replied that he felt sure of it.[13] Mitchell left the conference with the understanding that Hoover would accept his recommendation and make an offer to Hughes.

Mitchell's account of those events is wholly consistent with that of Hoover. In his letter to Hughes on the subject the President wrote:

In the course of his discussion with the President, Mitchell made some reference to the rumors that Taft's mantle might fall on Justice Stone. "The President expressed surprise," Mitchell writes, "and I realized that he had not been considering Justice Stone or anyone else but Mr. Hughes."[15]

Unless one is willing to assume that Mitchell lied or had an appalling distortion of memory, it is clear that Hoover could not have offered the chiefjusticeship to Hughes expecting him to decline. What, then, is left of the Cotton story?

The evidence is conclusive that the offer to Hughes was not made on the telephone. The assumption that Hughes acted precipitously without thinking about the consequences to his son's career is contradicted by the established facts in addition to being inconsistent with everything that is known about Hughes. Both Hoover and Mitchell have swept away Cotton's presumption that the President expected Hughes to decline his offer. These well documented facts cannot be dissolved by the argument that Hoover did sometimes make offers by telephone or by claims that the Cotton story "has as a psychological matter the ring of truth." History cannot be made by dancing on a lilypad of fiction, however skillful the performer may be.

The point of this reiteration of data that have long been on record is not to pass judgment on Joseph Cotton. The conflict between the statements of Hoover and Cotton cannot be wholly resolved on the basis of available facts. What is apparent, however, is that Cotton's advice to Hoover–if indeed they did discuss the naming of a successor to Taft–was out on the fringe and had no bearing on the choice that was made. Cotton obviously did not know what was going on in the minds of those who made the decision, and his crude attempt to read the mind of Hughes tends to undermine the credibility of the entire story

A preponderance of facts indicates that Hughes was Hoover's first choice for the chief justiceship despite his closer personal friendship with Justice Stone. Hoover acted logically and responsibly in the national interest without being swayed by friends who had axes to grind. His high-minded decision brought to the leadership of the Supreme Court one of the ablest legal minds this country has produced at a time of crisis for constitutional government. To demean that performance as an insincere gesture, in the face of conclusive evidence to the contrary is a grave disservice to the Court and to history.

Endnotes

1. Hoover to Hughes, February 19, 1937, in the Hughes Papers, Library of Congress; also 3 Memoirs of Herbert Hoover, Trhe Great Depression, 1929-1941, pp. 375-76.
2. Hughes' Biograpihical Notes, pp. 293-94.
3. Author's interview with Ernest L. Wilkinson, February, 1949.
4. This is clear from Hughes' Biographical Notes, from Hoover's letters to Hughes, and from several Hughes interviews with the author from 1945 to 1947. The subject is covered in substantial detail in my two-volume authorized biography, Charles Evans Hughes (Macmillan, New York, 1941).
5. Hoover to Hughes, February 25, 1937.
6. Author's interview with Chief Justice Hughes, April 24, 1947.
7. Henry F. Pringle, The Life and Times of William Howard Taft, II, p. 1044.
8. Author's interview with chief Justice Hughes, Nov. 19, 1945.
9. M.J.P. to Felix Frankfurter, Dec. 5, 1956, Frankfurter Papers, Box 147, Library of Congress.
10. Felix Frankfurter to M. J. P., Dec. 10, 1956.
11. Felix Frankfurter to M. J. P., Nov. 27, 1956.
12. William D. Mitchell to author, Nov. 7, 1949.
13. Id.
14. Hoover to Hughes, Feb. 25, 1937.
15. William D. Mitchell to author, Nov. 7, 1949.