Public76

Charles Evans Hughes: My Father the Chief Justice

ELIZABETH HUGHES GOSSETT

Copyright 1975, Supreme Court Historical Society
from the Yearbook 1976 Supreme Court Historical Society

It is a pleasure and a privilege to greet and welcome our readers to this, the first issue of the Supreme Court Historical Society's annual Yearbook, and at the request of the Editor, to reminisce a little about my father.

NEAR THE END of father's second term as Governor of New York, President Taft wrote to sound him out about his willingness to accept a position on the Supreme Court, intimating that ultimately he would like to appoint him Chief Justice to succeed Melville Fuller, who was in failing health. The appointment actually offered to father was an Associate Justiceship, to replace Justice Brewer. Father accepted, and on May 2, 1910, Taft sent his nomination to the Senate, which confirmed him unanimously following a discussion of about five minutes. That was quite a contrast to the two weeks of heated debate over his nomination as Chief Justice in February 1930, when he was finally confirmed by a vote of 52 to 26, the largest vote against a confirmed
Supreme Court nominee in this century.

On July 10, 1910, Chief Justice Fuller died and the President vacillated for about five months before naming a successor. Father took his seat on October 10 of that year, and for the next two months there were constant references in the newspapers, among his friends, and even among members of the Court to the fact that he was the leading candidate for Chief Justice. In the circumstances--with a heavy load of judicial work,
and the need to adjust to life on the Court, including the establishment of compatible relations with his new Brethren-those rumors embarrassed him. Of course, he never made any reference to the letter that Taft had written to him in April, with its intimations about the Chief Justiceship. Indeed, father had mental reservations about such an appointment. Was he too new on the Court? Was he too young and inexperienced as a judge? Would the older Justices be offended?

In any event, the die was cast on December 10, when he received a telephone message to call on the President at the White House. Half an hour later, another White House call came, this time to cancel the appointment with the President. Then came the public announcement: Edward D. White, an Associate Justice from Louisiana, had received the nomination. Father, although no doubt disappointed, was relieved to have the matter settled. Merlo Pusey, father's biographer, made some interesting comments about the
historical implications of Taft's action:

From the hindsight of four decades, it would have been no mistake for Taft to have carried out his original intention: Hughes would have found it rough going for a time, but he would soon have been master of the situation; and the tenure of his Chief Justiceship. would have rivaled Marshall's and Taney's. His executive ability and his keen legal mind were ultimately to give him power within the Court that Chief Justice White never succeeded in attaining.

It is interesting to contemplate the changes in history resulting from Taft's vacillation. Had Hughes become Chief Justice in 1910, he would not likely have resigned to run for the presidency in 1916, and he would not have arrested the naval armament race in 1922 as Secretary of State. From 1910 to 1930 he would probably have led the Court in more sweeping and successful adaptations of the law to our changing industrial civilization than either the White court or the Taft court achieved. And, of course, Taft would never have
realized his great ambition to be Chief Justice. Taft privately lamented in 1910 the irony of the fate that forced him to give to another the one position in all the world that he coveted for himself. We may reasonably assume that the possibility of cutting off his last chance to be Chief Justice by naming a man as young and hardy as Hughes flickered through the President's mind. But it must have been a remote factor. In any event, the President was right in saying Hughes was young enough to wait. Yes, he would still be young enough in a distant day to take the Chief Justiceship from Taft's own dying grasp.

My earliest memories of Washington, D.C., are somewhat less than vivid, to say the least. They include riding with my mother in a horse-drawn carriage to the Supreme Court and getting caught in a violent thunderstorm with high winds, falling trees, and bolting horses. I faintly remember, too, moving from a rented house at 2401 Massachusetts Avenue to the only house father ever built--at the corner of Sixteenth and V Streets. This, he thought, was to be his abode for the rest of his days. He could not anticipate the intervention of fate! It was a comfortable, roomy four-story red brick house in which we lived for five years, until June 1916. My grandmother Hughes had a room on the top floor, and I was her neighbor. My brother, Charles E. Hughes, Jr., having been graduated from Harvard Law School, was living in New York, starting practice there; Helen, my older sister, was at Vassar; my sister Catherine was at National Cathedral School, and so was I after spending a couple of years at Holton Arms.

I remember well the rides in mother's electric automobile to take father to the Court and often call for him there. During that period I began to realize that my family was different, and I felt a compelling need to do the best I could so as not to "let father down." There was no mention of this at home; but my brother, sisters, and I just felt it and carried on as best we could. I remember, also, some of the other Justices on the Court, particularly the formidable Justice Harlan, Chief Justice White, the frail Justice Day, Justices McKenna and Lurton, and, of course, Justice Holmes. As they died or left the Court for one reason or another and the new appointees arrived, I came to know them also--Justices Lamar, Van Devanter, McReynolds, and Pitney. It is interesting to note that when father returned to assume the Chief Justiceship in 1930, fourteen years after he resigned as an Associate Justice, only Justices Holmes, Van Devanter, and McReynolds were still there. And now of the Justices on the Court when he retired in 1941, only Justice Douglas is left.

The former President and Chief Justice, William Howard Taft, was a good friend of our family. When he was President, he came to Albany to call on father and joined the family at dinner. He picked me up, set me in his lap, genial and jovial as always. But I was not a bit impressed. I began to cry, slid down, rushed to my mother and said: "Oh! What a biggy man!" A second meeting occurred when he was Chief Justice and father was
Secretary of State. We met casually one day on the Connecticut Avenue bridge. As we walked together he talked to me, told stories and did some reminiscing about Washington, which he seemed to enjoy. But I was concerned. Whenever I walked with father, we often did so in silence, and I sensed that he was intellectually engaged in working out difficult legal problems that were involved in cases then before the Court. So when
Taft insisted on conversing so volubly, I became self-conscious and said to him: "Mr. Chief Justice, you don't need to talk to me." He roared with laughter, his large stomach shaking like that of Santa Claus. Shortly after I arrived at home, Taft telephoned father to report my remark and expressed his amusement.

Even though I sensed father's need for deep concentration at times, even at home, and acted accordingly, he was by no means a stern parent. He left most of the child disciplining to mother, and although heavily burdened with work, he seemed to forget it all at mealtimes. And so I remember only happy dinners, with much laughter and light conversation. Father was an inveterate story-teller, with a great ability as a mimic,
especially in dialects.

I was allowed to join the family at dinner at an unusually early age, because my parents realized that otherwise I would be alone. Thus I was fortunate enough to be allowed to listen and absorb when guests came; and distinguished ones some of them were! Children were "seen and not heard" in those days, and to me that seemed an advantage. I wouldn't have ventured a remark in any event, but I listened carefully and tried to understand what I heard. Although father never discussed cases pending before the Court, of course, he occasionally expressed a confidential opinion on current events; but he always cautioned us with the remark: "This is not to be repeated to anyone." We never did and were benefited by that early training.

In his "Autobiographical Notes," father describes his early days on the Court and gives intimate accounts of the Justices. Harlan and White apparently did not admire each other, nor did they see eye to eye. Harlan and Holmes, he wrote, were antipathetic; yet each respected the other and they were "gentlemanly opponents." Harlan longed for the Chief Justiceship, and when White was promoted instead, it was a bitter pill for him to swallow, and yet he did manage to conceal his disappointment. Things became smoother on the Bench after resolution of the uncertainty as to who was to become Chief Justice; and father wrote that the Court was greatly strengthened by the accession of Van Devanter and Lamar, followed by Pitney.

He added that, "Of all these judges with whom it was my privilege to serve during my Associate Justiceship, Holmes had the most fascinating personality. Not that on the whole he was a more admirable character, but that by reason of his rare combination of qualities--his intellectual power and literary skill, his freshness of view and inimitable way of expressing it, his enthusiasm and cheerful skepticism, his abundant vitality and gaiety of spirit--he radiated a constant charm. My relations to him were of the happiest sort."

Indeed, it was a happy and stimulating six years, during the course of which he gave up smoking, a decision that he said was of great benefit to his health and vigor. During the course of those first years on the Court, he wrote 151 opinions of the Court and dissented in only 32 cases. In the eleven years as Chief Justice, he wrote 283 Court opinions and dissented in 23 cases. Thus, his record in the seventeen years of service was 434 opinions of the Court and 55 dissents.

Commencing in 1915, there were rumblings in the press and within the ranks of the Republican Party about a draft of father as nominee for President in 1916. Although he discouraged such talk, he was conscious of the increasing pressure and demand. "It was thought," he said, "that I was the only one who could unite the factions of the Republican Party and restore it to the place it had held before the rupture in 1912; and that this restoration was essential to the working of the two-party system."

Mr. Taft, who had appointed him, agreed that he should not refuse, if nominated. Justice Van Devanter felt the same way; Holmes understood the situation and so did Chief Justice White. The latter expressed the view, however, that if father remained on the Court he would get the Chief Justiceship after he, White, retired, which he wanted to do. Father's response was that President Wilson would never appoint him Chief Justice. "Well", White replied, "he wouldn't appoint anyone else, as I happen to know." "I told Chief Justice
White," said father, "that I was going to do what I thought was right and that I would not be influenced by any such suggestion."

One of my most vivid Washington recollections is of returning home from school with my sister Catherine (about to graduate) in June of 1916, when we found a large crowd around the front door of our house, extending out into the street. Snapshots were being taken, and my father was standing on the front steps talking with reporters. Not wishing to interfere, we entered the house through the back door. A little while later, father came to us and said: "Catherine, Elizabeth, I have just sent in my resignation from the Court to
President Wilson and have accepted the nomination of the Republican Party to run against him for President."

That was exciting news, of course, and I recall spending the summer in Bridgehampton, Long Island. There were state troopers and Secret Service men about and I remember that father and mother were constantly leaving for and returning from cross-country campaign trips. The most important event of all was when mother awakened me at midnight of election eve to show me the lights of Times Square, with 200,000 or so
people chanting "Hughes, Hughes" in unison, and the statement flashing from the tower of the New York Times building: "Hughes Elected"!

As everyone knows, the next morning there was doubt about the outcome and later news of father's defeat. Senator Hiram Johnson had won the State of California and father had lost the state and the election by a small margin. In his autobiographical notes, he describes his reaction: "I was not cast down by my defeat. As I wrote Mr. Taft, I had `no complaints and no regrets.' I had done my best. While of course I did not enjoy being beaten, the fact that I did not have to assume the tasks of the Presidency in that critical time was an adequate consolation. The New York Times, which had vigorously opposed me as a candidate, gave me a generous welcome as I returned to professional practice in New York." The Sixteenth Street house was sold and the family moved back to New York.

But father's career of service to the country was not over. We returned to Washington when he was appointed Secretary of State in the Harding Cabinet. Entertainment was part of the job, and father and mother often entertained at home. Those were the days of receptions--not cocktail parties, but afternoon teas. Wives of Cabinet officers and of other officials were "at home" on various days of the week. For example, Mondays were reserved for the Supreme Court ladies, Wednesdays for the Cabinet wives, Fridays
for the embassies and legations, etc. In addition, the official wives in all categories often paid calls on others and left calling cards. Such practices fortunately were abandoned during the Second World War. Not only were those elegant teas costly; they were time-consuming and tiring.

Mother's first day at home after father returned to Washington as Secretary of State, I shall never forget. More than a thousand people "dropped in"; traffic was snarled around the house where we lived on Eighteenth Street near Dupont Circle, and we ran out of food. It is not difficult to imagine what might happen these days if "open-door" receptions were held. The "twenties" and "thirties" may have had their problems, but the Washington crime rate was low, and there was little or no fear of serious incidents.

In 1925, father resigned and returned to the practice of the law in New York. He bought an apartment at 1020 Fifth Avenue, and again thought this move to be final and permanent. During those years between 1925 and 1930 I was at Barnard College, and each summer father and mother and I vacationed in Europe, motoring at leisure and visiting many countries. In September 1928, though, father was elected by the Council and Assembly of the League of Nations as Judge of the Permanent Court of Justice at The Hague and was a member of that court during its session from May to September, 1929.

He thoroughly enjoyed that work, and for mother and me it was another period of exciting events. We were caught up in the social whirl of The Hague, which as a nation's capitol was reminiscent of Washington, D.C., with the various festivities of the embassies. Calling and card leaving was again part of the weekly routine. The volume of work on that court was not large, and yet the necessity for constant translation of oral arguments encumbered and slowed down the court procedure. Father was not fluent in French, but he could
read it and could understand much of the arguments that were made in that language.

To aid in the process, father hired a young man to serve as his law clerk. He, Edmund L. Palmieri, fresh out of Columbia Law School, spoke French fluently, and Italian as well. This was a great asset and Ed, as we called him, lived at our hotel, the Wittebrug, and become a close and valued friend of the family. Incidentally, after our return to the U.S.A., he entered law practice as an associate of father's old firm and later became a Judge of the United States District Court for the Southern District of New York, a position he still holds.

While serving as a judge of the Permanent Court, father of course continued his law practice in New York. He was happy in that dual role and especially enjoyed our summer at The Hague. Once more he thought he would be serving out his full term there, not realizing that the Chief Justiceship was in the offing. It was a mere four months after he returned from The Hague, on February 3, 1930, that President Hoover sent his
name to the Senate for confirmation as Chief Justice. Chief Justice Taft was in failing health, too ill to perform his duties, and died about a month later. His resignation had been accepted by the President on the third, the same day he sent in father's nomination.

Meanwhile, my brother, Charles E. Hughes, Jr., was serving as Solicitor General of the United States. He had been appointed by Hoover in May 1929, to that demanding position and had established an enviable record there. But fate decreed that Charlie would serve only about a year in that capacity. He recognized the conflict of interest problem immediately, of course, and did not wish to stand in the way of father's Chief Justiceship.
Accordingly, he resigned shortly after father's appointment was confirmed.

Several days prior to February 3, 1930,something occurred that caused me to ponder. About 8:00 p.m., at our apartment in New York City, father received two distinguished visitors from Washington. They were Justices Van Devanter and Butler. Characteristically, father had not mentioned that they were coming. After a short stay, they left, and father, seeing the light on in my room, realized that I had seen them and issued
the usual warning, "Please do not mention this visit to anyone." Nor did I, but when he telephoned me from Washington a few days later to tell me of his acceptance of the appointment as Chief Justice, I put two and two together! The visiting justices obviously were there to sound father out about his willingness to accept the appointment.

The two-week debate in the Senate over father's nomination both distressed and wounded him deeply. A majority of the years of his mature life had been spent in service to the country, and to hear the derogatory references to his character, to his "big-business" clients, to his large legal fees, was bitter medicine. Indeed, I believe it hurt him more than the loss of the presidency. Even though his ultimate confirmation probably was never in doubt, the unjust attacks in public debate were difficult for him. He was a sensitive man and a proud one. The principal thrust of the attack was: (1) that he was reactionary in his views because many of his clients had been large corporations; and (2) that in his opinions as Associate Justice he "had unduly interfered with the authority of the states as to the extent of the power of Congress over interstate commerce." But his votes as Chief Justice in the years ahead served to refute and dispose of such claims as mere political sham.

When he took the oath on February 24, 1930, he was greeted warmly by his brethren of former years, Holmes, Van Devanter and McReynolds. Justice Stone he knew well, having been a colleague of his in the Coolidge Cabinet; Brandeis, also, was a friend of many years; and the others, Sanford soon to be replaced by Roberts, and Butler and Sutherland, all knew him as a prominent member of the bar of the Court. Holmes
remained on the Bench for two years with father as Chief. His failing health soon became apparent, though, and the Justices were all agreed that father should ask him to resign. This was a difficult, disagreeable task, "a highly unpleasant duty." But on Sunday, January 11, 1932, he went to see "the grand old man" at his home and told him as tactfully and graciously as he could.

Holmes received the word with grace and dignity, and in father's words: "At his request I got out from his bookshelves, the applicable statute and he wrote out his resignation with his usual felicity of expression." The next day he sat on the Bench for the last time, read the tender, affectionate letter written by father and signed by all the Justices, and replied with these words: "My dear Brethren: You must let me call you so once more . . . Your more than kind, your generous letter touches me to the bottom of my heart." Holmes
lived for another three years; he died on March 6, 1935, and in his memorial tribute father said: "The most beautiful and rarest thing in the world is a complete human life, unmarred, unified by intelligent purpose and uninterrupted accomplishment, blessed by great talent employed in the worthiest activities, with a deserved fame never dimmed and always growing."

Father's relationship with the other Justices was excellent, and although he was aware of a cleavage in the Court, much as he had been aware of the same situation on the Court he served as Associate Justice, he was not concerned with so-called labels, each man being entitled to his own opinion. "Now it was Van Devanter, McReynolds, Sutherland and Butler, all able men of high character who generally acted together."

Summing up this attitude are his own words delivered in an address before the Judicial Conference of the Fourth Circuit, June, 1932. "A young student wrote me the other day to ask whether I regarded myself as a 'liberal' or 'conservative.' I answered that these labels do not interest me. I know of no accepted criterion. Some think opinions are conservative which others would regard as essentially liberal, and some opinions
classed as liberal might be regarded from another point of view as decidedly illiberal. Such characterizations are not infrequently used to foster prejudices and they serve as a very poor substitute for intelligent criticism. A judge who does his work in an objective spirit, as a judge should, will address himself conscientiously to each case, and will not trouble himself about labels."

In commenting upon drafts of opinions, the Justices often wrote notes in the margins of the galley-proofs or in letters. Some of those notes are quite amusing. As an example, I quote the following letter from father to Justice Frankfurter:

"Dear Justice Frankfurter: I am surprised that exception should be taken to the statements in the paragraphs you mentioned in your letter. I thought that they gave the true milk of the word. While I think the opinion will not be as complete and well rounded without them, I am willing in the interest of harmony to make the omission you suggest. Justice Holmes used to say, when we asked him to excise portions of his opinions which he thought pretty good, that he was willing to be 'reasonably raped.' I feel the same way. Faithfully, Charles E. Hughes."

The "plan" which President Franklin D. Roosevelt sent to Congress on February 5, 1937, "to reorganize the judicial branch of the Government," startled the country, and before it was laid to rest in defeat the following July, had stirred the populace into writing thousands of letters in opposition, reflecting "the strength of public sentiment in support of the independence of the Court." Father's contribution to the defeat of the bill and deep feeling of resentment and opposition to the proposal is well known. Yet his personal relationship
with Roosevelt always remained cordial. And I think it is worth repeating here the story that after father had administered the oath of office to Roosevelt for the third time, he told him that "I had an impish desire to break the solemnity of that occasion by remarking: 'Franklin, don't you think this is getting to be a trifle monotonous?'"

It is my own view that father might have remained on the Court for a longer period if he had been an Associate Justice. Although he had suffered from a duodenal ulcer for more than a year, he was still able to fulfill his responsibilities as Chief Justice. But he feared that the time would soon come when he could not keep the pace that he had set for himself. And he was concerned also that if he started to slip mentally or physically, his brethren on the Court would be reluctant to tell him as Chief Justice that he ought to resign. And so, at 79, although in good health, he sent his resignation to President Roosevelt at the end of the term, June, 1941.

Characteristically, fearing a leak, he did not tell us, his children, of this decision. We learned it from reading the newspapers. It was fortunate, though, that he was alive and able to read the countless articles and editorials in the press applauding his long, faithful years of distinguished public service. The hundreds of telegrams and letters he received showed the warmth and esteem in which he was held by the people of the nation in all walks of life. So often such an outpouring of sentiment comes only after a man dies and without his knowing the impact he has made. Father fortunately did and, modest as he was, received it with extreme pleasure and wonderment.

Roosevelt accepted father's resignation with regret and invited him to lunch to discuss the appointment of his successor. Father's strong recommendation was Justice Harlan Fiske Stone, which Roosevelt accepted, and thus Stone moved up as had White before him. The Stones had always been good friends of our family and we were delighted. Five years later, by a strange coincidence, I happened to be in the Court with our eleven-year-old daughter when Chief Justice Stone was stricken, assisted from the bench and died a few
hours later--an event that neither of us will ever forget.

Father adjusted to retirement well. He retained his faithful secretary, Wendell W. Mischler (who had formerly served Chief Justice Taft in that capacity), kept up with his voluminous mail, read, walked, meditated and, while mother was still able, indulged in his favorite hobby--travel. When she died four years later, much of the joy of living went out of his life. The family tried to persuade him to move back to New York, where he could be closer to us, but he did not want to move, saying: "I prefer to live here in this house:
it is your mother's memorial."

He lived three years more, taking turns visiting each of us, his mind as clear and sharp as ever. But early in 1948, his ulcer symptoms returned, causing his heart to misbehave. Had he been able to take digitalis, he probably would have lived longer. As it was, the medicine disagreed, and he died while summering with us at Cape Cod, on August 27, at the age of 86 plus. During those two months prior to his death, we had many wonderful long talks, and he would say, as he sat on the porch of our cottage: "I like to watch the
waves--they do all the moving for me."

It would not be appropriate, even if it were possible, to describe what it meant to live with such a person. It was an unforgettable and indescribable experience. But let me quote the Resolution presented by Solicitor General Perlman to the Bar of the Supreme Court at the Memorial Service for father held in the Court, May 8, 1950, and follow with a quotation from Chief Justice Vinson's address on the same occasion. Mr. Perlman said: "It is notable. . . that he followed the rule laid down by Benjamin Franklin, never to seek a public office and never refuse one when offered. It could never be said of him that he was greedy for office. No nomination or appointment came to him of his own seeking. And his various forms of service were ended by his resignation." And Chief Justice Vinson added: "Bullying he opposed at home as well as abroad. He was constantly solicitous of the liberties which the Constitution assures the individual. His opinions on this Court, as Associate Justice as well as Chief Justice, display an appreciation of and fealty to, lofty ideals of fair trial for ideas as well as individuals. His vigilance to protect individual freedom, to promote world peace and to improve public means for dealing with problems which apparently no longer could be solved by unaidcd or unregulated individual enterprise, stamp Charles Evans Hughes as intensely humanitarian.

"Humane but efficient he manifests the balance which is especially worthy of emulation today. There is overmuch interest these days in classification at the expense of comprehension. There is excessive pressure to take all or none of a single dogma, rather than to accept the good and reject the evil of all proposals. In our times, there is extreme need of men like Charles Evans Hughes, who have some inner gyroscope of conscience and capacity which maintains a balanced devotion to duty. Chief Justice Hughes had his own exalted standards and principles and he lived by them. In him there was no surrender to the purposes of the uncritical or the critique of a single viewpoint."

Finally, here are father's own words:
"One of the most important lessons of life is that success must continually be won and is never finally achieved.

"There are those who look upon the supposed fortunate in our social effort who have achieved places of influence and distinction, as though they had in some way gained a citadel in which they could stand secure against every attack. In truth, all they have done is gain another level of responsibility in which they must make good.

"Every day is one of test. Every day puts at risk all that has been gained. The greater the apparent achievement, the more serious is the risk of loss.

"As has been well said, it is not worth while to talk of the end of a period, for you are always at the beginning of a new one. You cannot rest content. You have been vigilant; it remains to be yet more vigilant. You have been faithful, but fidelity is an active virtue which demands its daily sacrifices of any counter interest, its daily response in energetic service."

Elizabeth Evans Hughes (Mrs. William T. Gossett) is President of the Supreme Court Historical Society. Her husband is a past president of the American Bar Association.

Yearbook 1976 Supreme Court Historical Society

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