THE FIRST WOMAN CANDIDATE FOR THE SUPREME COURT

THE FIRST WOMAN CANDIDATE FOR THE SUPREME COURT -- FLORENCE E. ALLEN

Beverly B. Cook*

Copyright 1981 by the Supreme Court Historical Society
From Yearbook 1981 Supreme Court Historical Society

Qualifications for a Supreme Court Appointment
Ideological Standards for Appointment
Professional Standards for Appointment
Representational Basis for Appointment
Campaigning for the Supreme Court--The Backers
The Candidate
The Intermediaries
Opposition to Judge Allen
The Roosevelt Justices
Objective Criteria: Age, Sex, and Veteran Status
Why Florence Allen Did Not Reach the Supreme Court
Notes

Florence E. Allen almost became the first woman appointed to the Supreme Court of the United States. After President Roosevelt placed her on the U.S. Court of Appeals in the Sixth Circuit, in 1934, she was highly visible in the federal judicial hierarchy. A campaign for her elevation to the High Court was run primarily by enthusiastic women from a variety of reform and professional groups. Her presence on the Supreme Court was a goal well worthy of the efforts of veterans of the suffrage movement, who expressed great pride in the achievement of each woman who would break the male monopoly over a governmental position.

Judge Allen's attitude toward the ambitions of her supporter\s was ambivalent. Within weeks of her confirmation for the Sixth Circuit seat, she wrote:

Do not block in the future too optimistically because there are some things that will never happen in our lifetime. In other words, when my friends delightfully tell me that they hope to see me upon the Supreme Bench of the U.S., I know two things: first, that will never happen to a woman while I am living, and second, that perhaps it is just as well not to mention that possibility at the present time because there is a certain type of lawyer that immediately becomes fighting mad when that possibility is mentioned.1

Her political instinct was to restrain her supporters from a premature effort, before she gained experience and recognition as a federal appellate judge. She was realistic in her assessment of the limits of opportunity for women in the law in her era. When she retired as chief judge of the Sixth Circuit in 1959 (and when she died as a senior judge in 1966) the Supreme Court still was all male, while the tier of circuit courts reverted (for two years) to a male monopoly.2

Qualifications for a Supreme Court Appointment

Many individuals possess the necessary attributes for service on the Supreme Court, but never come to the attention of those who make the selection. Four offices together control the process of selection--the Presidency, the Office of Attorney General, the Senate, and the Supreme Court. While Florence Allen had most of the qualifications for the office, she lacked leverage with the inner circle which drew up the short list of viable candidates. Even intervention by Eleanor Roosevelt and by the Women's Division of the National Democratic Committee was not enough to overcome resistance from the four central offices.

In the making of a Supreme Court Justice, the President is the central figure. Many Presidents prefer to know personally the qualities of the person placed in a position to interpret the fundamental national law and to affect public policy for a generation. The Attorney General, as the chief legal adviser to the President, with close ties to the overlapping political and legal professional communities, may bring other candidates to the President's attention. Through the facilities of the Department to gather information and make judgments, he may eliminate or improve the chances of candidates.3 Justices sitting on the Court have a sense from their immediate experience of the pertinent abilities and appropriate personality for the position. Some Justices have volunteered names and evaluated (and probably vetoed) candidates whom they felt would not be compatible or contribute to their small and intimate working group.4 As the Senate must confirm Supreme Court appointments, the nominee to the Court must appear suitable to the Senate majority, to the leaders of the President's party in the Senate, and to the Judiciary Committee.5

The qualifications for candidacy for the highest bench have been described under three categories: ideological, professional, and representational.6 The candidate must first have the "right" values and public policy views to satisfy the administration and the key Senators of the President's party. The recognition of the independence of the "third branch" provides the very incentive to avoid placing a person with a different political philosophy in a position to interpret or veto administrative programs. As a substitute for a candidate with stable and reliable set of political opinions, the President may look for personal loyalty, which will have the same short-run effect. The professional competence of the candidate is a necessary but not sufficient criterion. "Eminence" in public service compensates for less experience as a legal practitioner. Judicial experience has never been considered a requisite to sit on the constitutional court, but such service provides the appointing agents with a jurisprudential record from which to draw conclusions about ideological soundness.

The search for candidates with the appropriate views and professional qualifications may occur within the boundaries of certain representational requirements. Although the geographical background of the prospective judge is no longer important to the function of circuit-riding, the President takes account of the pride of major regions. The geographical claim, like other representational criteria, may be closely related to areas of party strength and electoral strategies of the President's party.7 Most nominees have the appropriate party identification. In the minority of instances where the President sees some advantage in a cross-party choice, the individual must at least meet the ideological or loyalty standard. The religion, the race, or the ethnicity of the nominee may fit the coalition of interests that the President needs to satisfy. The male sex of any Supreme Court nominee was taken for granted until Florence Allen came to public notice in the 1930's. But her female constituency did not have sufficient organizational strength to demand representation in high public office. Catholics and Jews had attained such strength earlier. Blacks were to achieve it by the mid-1960's. By the 1980's women have probably also reached this stage.

Florence Allen's failure to reach the Supreme Court was not due to lack of qualifications, but to her inability to penetrate the selection process. Her sex identity was not a complete bar. Even had she been male, there would probably have been only two realistic opportunities for a person with her combination of qualities on a circuit bench in the Midwest--the seats ultimately filled by William O. Douglas and Wiley Rutledge. How Judge Allen fit the three categories of qualification can be appreciated by a brief review of her public life.

Ideological Standards for Appointment

The reformist bent of Allen's career fit the dominant themes of the New Deal. She was stirred to action by the plight of those deprived or mistreated by authority, and worked out her own creative solutions for problems ranging from inefficiency to war. After her first year of law school at the University of Chicago, she worked for the New York League of the Protection of Immigrants, living at the Henry Street Settlement House.8 Her law degree came from New York University in 1914. She then returned to Ohio to open a practice. As soon as the nineteenth Amendment was ratified in 1920, she ran for trial judge in Cleveland. As a Judge of the Court of Common Pleas, whenever she identified a problem involving the jailing of witnesses, the bail policy, or the administrative weakness of the court, she would introduce her own experiment, a court rule, or even propose revision of a state statute.9 As a Justice on the Ohio Supreme Court from 1922-1934, she made rulings consonant with New Deal support for the rights of labor. She held, for example, that picketing without violence or any form of coercion was lawful.10 She also interpreted the Ohio workman's compensation law broadly to extend benefits and coverage.11 Her approach to social justice was compatible with that of Franklin D. Roosevelt, perhaps even more so with that of Eleanor Roosevelt.

Her stance on the rights of racial minorities to equal treatment was generally ahead of the times. However, one of her decisions against the complaint of a black student in the Home Economics Program at Ohio State was questioned during consideration of her confirmation to the Sixth Circuit. Judge Allen attempted to distinguish between academic rights and social prerogatives related to residence on campus.12 After her death the federal courts were still trying to separate the private right to discriminate from the public right to equal treatment.13

Florence Allen's party credentials were good. Although her father was the first Republican member of Congress from Utah (her childhood home state), she entered politics as a Democrat in a different state, Ohio. She joined the central committee in Cleveland at the time Newton Baker was county chairman. In 1916, she campaigned for President Wilson in the west under Baker's direction. When Baker advocated compulsory military service, she resigned as head of the Democratic Women of Ohio. Because the 19th Amendment was ratified too late for her to apply for Democratic party endorsement for trial judge, she got on the ballot in 1920 by petition upon the urging of the Woman Suffrage Party. Republican women leaders worked on her campaign along with Democratic women, all of whom belonged to nonpartisan women's groups, such as the Business and Professional Women, the League of Women Voters, women lawyers' clubs, church groups, university women, and other local societies. Labor and the press also gave support to her candidacy; and she led the field of candidates.14

Her campaigns for the Ohio Supreme Court also had bipartisan backing. Although she cleared first with Newton Baker, the Democratic party did not endorse her.15 She created her own organization of Florence Allen clubs from the remnants of the suffrage organization. Again, Republican women who had worked with her in the Ohio campaign for the 19th Amendment from 1910 to 1920 joined the Democratic women.

Florence Allen had the kind of continuing interest in vital public policies typical of Supreme Court Justices. She considered running for the state legislature before the opportunity for the trial judgeship occurred. She felt that she could work more effectively for certain policy ends, including world peace, from a legislative rather than a judicial body.16 While she was serving on the Ohio Supreme Court, she decided to run as the Democratic candidate for U.S. Senator, based on Newton Baker's advice. However, the incumbent changed his mind about retiring and she released the state party from its endorsement, continuing her campaign through her women's ad hoc organization, but losing. She was the bona fide candidate of her party for the first time in 1932, losing a race for the House of Representatives, but receiving 41% of the vote.17 Her court seat was not endangered by these candidacies. She won a second six-year term as a nonpartisan in 1928.

Florence Allen faced the same difficulty in establishing her credentials as a successful party candidate and office-holder as women fifty years later. Her membership and active participation were accepted within limits; when she offered to take on leadership roles, particularly candidacies for high public offices, the party showed little interest in giving her real opportunities. The party used her services in unlikely congressional races. Her own victories were independent of the Democratic party and contingent upon her organization of existing women's political clubs into a working state-wide unit. The decline of female activism in the 1930's was one reason she was happy to take the life-tenured federal seat and avoid a third state-wide race for the Ohio Supreme Court in 1934. Allen's credentials for the Supreme Court nomination did not include those "party chips" that many male politicians, even those on the bench, have been able to accumulate during their careers.

Professional Standards for Appointment

By the 1930's Judge Allen was the most eminent woman legal professional in the country. She had the scholarly credentials typical of Supreme Court Justices.18 She had been Phi Beta Kappa as an undergraduate, second in her graduating class at New York University Law School, and counsel on the winning side of landmark cases for women's rights in Ohio.19 She was an active member of the American Bar Association and the International Bar Association, and an international law leader in the peace movement. She had worked with national leaders of the woman suffrage movement (Carrie Chapman Catt, Anna Howard Shaw, Harriet Taylor Upton, and Maude Wood Park); with leaders of the social welfare movement (Florence Kelly, Frances Kellor, and Sophonisba Breckenridge); and with leaders of the movement to outlaw war (whose membership largely overlapped the other two). She had developed a constituency outside Ohio and the Sixth Circuit through her speeches to women's clubs, university and law school convocations, and bar associations in major cities.20 The only woman in public office in the New Deal with higher stature was Frances Perkins, Secretary of Labor. But Perkins was not a lawyer.

Judicial experience is not essential to be considered for the High Court. Indeed, it often interferes with the development of political contacts that assure such consideration. Only one of Roosevelt's appointees had the circuit court preparation that Judge Allen would have brought. The meaning to the President of service on the bench is not just proof of competence, but also a "readily available index of the personal and intellectual qualities of potential candidates."21 More importantly the portfolio of opinion discloses the pattern of the judge's policy preferences.

Florence Allen showed her colors in her major case, the TVA trial, where she displayed clearly her agreement with a symbolically significant economic recovery program of the New Deal and her ability to reconcile skillfully the legal provision undergirding the program with the Constitution. The Chief Judge of the Sixth Circuit assigned Judge Allen in 1937 to preside over the three-judge court.22 She heard the case in Chattanooga with two Tennessee district judges. One of them, Judge John D. Martin, became a life-long friend and supporter of her elevation to the Supreme Court. After months spent in hearings and opinion drafting she upheld the validity of the TVA statute. The fact that the decision was vitally important to the administration, after other programs had been effectively destroyed by the Supreme Court between 1933 and 1936, does not detract from the professional skill with which she supervised the trial process, handled complicated evidence, and arranged the legal arguments in her opinion.

Representational Basis for Appointment

In many respects, Florence Allen fit the model of a typical Supreme Court Justice which has been described by John R. Schmidhauser: white, Protestant, of British ethnic stock, and born into comfortable circumstances in an urban or small town environment.23 She was white, Protestant, descended from British settlers, and raised in Utah towns.24 Justices are also drawn from political-legal families.25 Allen's father was a lawyer who served in the Utah legislature and the U.S. Congress. Her college-educated mother was a leader on the state level of women's policy-oriented clubs. Her geographical base had been fixed in Ohio, a major supplier of Justices, since her undergraduate days at Western Reserve (1900-1904). But Judge Allen did lack one requirement of powerful political status--the right sex.

Except for her sex, Florence Allen met the basic political, professional, and representational standards for Supreme Court selection. Still, as we know, few of the many potentially acceptable candidates, appear on short lists, and fewer are accepted. Recognition of candidates and their winnowing to the nominee depends upon the particular persons involved in the process and the contemporary political situation within which the events occur.26 The most important elements are the party membership of the President and of the candidates. Florence Allen was a Democrat. During the period of her professional maturity, two Democratic Presidents were in office from 1933 to 1952. President Roosevelt made eight new appointments (excluding his elevation of Justice Stone, a Coolidge appointee, to the center chair). President Truman made four appointments. Thus, Florence Allen was "available" for twelve vacancies. To understand why she finished her career after twenty-five years still on the Sixth Circuit bench, we shall examine the campaign for her elevation to the Supreme Court, and the situation within which each appointment of a male candidate occurred.

Campaigning for The Supreme Court--The Backers

The campaign on behalf of Florence Allen for the Supreme Court stretched across two administrations. With each vacancy the hopes of some of her followers were rekindled, but the urgency of the effort was to decline in the 1940's. From beginning to end her efforts to reach the bench were carried by women.

Her friends began to push her interests openly in 1936 in anticipation of the first available seat. When the Van Devanter vacancy occurred, supporters wrote to President Roosevelt that the women of the country wanted to see Allen on the Supreme Court bench.27 Although her adherents were active at the time of the Black appointment, they were better prepared for the second Supreme Court vacancy in 1938, when her name was mentioned publicly. One supporter wrote from Florida that a host of her friends determined that her final goal should be the highest Court.28 Lawyers who knew her on the federal bench in Cincinnati, and older associates from her days on state benches in Columbus and Cleveland, worked by mail and in person. One lawyer tried "to further her cause" in Washington.29 Another lawyer wrote to Franklin Roosevelt and to Eleanor Roosevelt separately and sent Allen copies. He urged FDR that fitness rather than sex should be the main consideration and reported that male members of the bar considered her an outstanding judge.30 To Mrs. Roosevelt he emphasized that Allen's influence on eight men would be humanizing.31

The work on her behalf continued for the next vacancy, the Cardozo seat. Judge John D. Martin of Tennessee, her colleague in the TVA case, wrote of his disappointment that the President did not select her. He was keeping score by the geographical criterion and predicted that the next appointment would go west. He also urged a concentrated effort during the Roosevelt administration when her chances were greatest: ". . . now is the time to bring forward all the pressure of strong endorsements . . . for the next vacancy."32 Florence Allen was returning the compliment during the same period by recommending Judge Martin to the Attorney General for appointment to the Sixth Circuit.33

The participants in the letter-writing campaign in 1939 ranged from the little-known women lawyers in small midwestern towns to New Deal office-holders in Washington with useful contacts. Letters that were written to the President were screened by his staff. Unless a letter bore a special tag, it was unlikely that the President would be aware of the character and variety of support for Allen's candidacy. The head of the Woman's Division wrote to Stephen Early in 1939 asking him to show specific "important letters" to the President--those from Judge Dorothy Kenyon, New York City; Judge Annabel Matthews, D.C.; Dean Harriet Elliott, Woman's College of North Carolina; Professor Grace Abbott, University of Chicago; Mrs. Earlene White, BPW national president; and Dr. Emily Hickman of the YWCA.34 His response that all endorsements were considered at the time of an appointment was hardly satisfactory. Allen was supported by such organizations as the American Association of University Women, the Business and Professional Women, the General Federation of Women's Club, New York Women's Trade Union League, American Legion Auxiliary, Women's Bar Association of D.C., and Women Lawyers of New York City.35

Within the federal courts, secretaries of the judges corresponded, arranging for the endorsements. One secretary wrote to Judge Allen: "We had some plain and fancy cussing around here about the last Supreme Court appointment. We are all pulling for you on the next go-round. . . ."36 Her judge sent a tribute of Judge Allen to a college dean, who in turn passed the evaluation on to the White House.37 The secretary to a Chicago federal judge wrote to a woman lawyer in that city offering further help and commenting ". . . we feel she is better equipped than most men."38 However, Allen's secretary fell into an embarrassing situation in writing to federal judges for endorsements. Judge Gore died when a letter asking for his help was in the mail and she feared that it might reach the wrong hands. Judge Martin took care of the mishap.

Women judges also rallied behind the only woman in the federal court system (Article III courts). Judge Sarah Hughes, later appointed to the U.S. District Court by President Kennedy, wrote several times on her Texas state court stationery: "I believe that she is thoroughly qualified and that she would bring honor to the Court."39 Judge Dorothy Kenyon of The New York Municipal Court wrote to the President that "So many distinguished women have urged her elevation to the bench that it is perhaps unnecessary to add my voice to the others." She enclosed a summary of Allen's legal opinions.40 Judge Anna M. Kross, New York City Magistrate, wrote to Mary Anderson at the Women's Bureau in D.C. that she had been conducting a quiet campaign for Allen through a "Committee for the Advancement of Women Lawyers to High Judicial Office of the National Association of Women Lawyers" and was planning to broaden the coalition for the next vacancy.41 Judge Annabel Matthews, the first woman on the Tax Court, and a Republican, wrote that women lawyers took great pride in Allen's record as a great liberal and jurist.42 However, Mabel W. Willerbrandt, the second woman to serve as assistant Attorney General, and the only other woman in the country with credentials for a Supreme Court appointment, from a Republican president, was somewhat less generous. She asked FDR to appoint "a woman."43

Support from young women in the party which struck a chord in the White House: "I know of nothing that will unify the Democrats more than the act of your appointing the Honorable Florence Allen to the Supreme Court." The writer made a complaint and a plea which were just as valid forty years later:

Recently in my attendance of conventions of Democratic women I have noticed that many of their discussions have been given over to expressions of disfavor in that women of the Democratic Party do much of the work, including precinct, county, state and national activities--but even women with outstanding ability rarely receive equal responsibilities, honors, privileges or opportunities of service with men.44

Two maverick Senators, Borah and Norris, were in her corner.45 Her other male supporters included a few judges and lawyers, the husbands of female backers, men in the peace movement, and journalists. Her good friend William Allen White of the Emporia Gazette reminded FDR in 1941 that he had only asked three favors, including the nomination of Florence Allen.46

A woman columnist in the D.C. Times-Herald wrote a highly complimentary background sketch.47 Several papers carried headlines which brought public attention to her candidacy.48

Although the Baltimore Sun headlined that "Roosevelt Hints at Court Post Surprise,"49 the nominee for the fourth vacancy as expected by the White House and Justice Department staffs was William Douglas. Judge Allen's supporters tried to repeat their endorsement campaign for the Butler vacancy which Murphy received in 1940. But when Justice McReynolds departed in 1941 her group had second thoughts about contending for the sixth seat. A friend in Washington wrote:

When the news broke the clan gathered to decide what we should do. Some wanted to fly into print again for you--send messages, etc. to the White House. I took the position that we had to consider you and I insisted that we should find out through Mrs. Roosevelt if the President had an open mind on this appointment. The word came back that he had made up his mind. . . .50

A few old friends persisted in a disorganized fashion after 1941, but there was no strong effort in 1943, when a circuit judge finally won the prize from FDR

The Candidate

Florence Allen took the public position that she had "no political ambition whatever,"51 that "I am not a candidate for any appointment."52 That was the correct stance for a serious candidate. But even if she felt a realistic pessimism, she must have been caught up by the spontaneous and indefatigable enthusiasm of her supporters; she never specifically forbade them from working for her elevation between 1936 and 1949. She recognized that she was serving the interests of all women through the important public roles which she played and was pleased by letters which said, "My best wishes for the U.S. Supreme Court and for you--the trail blazer."53 She knew that it must appear that the position came to her rather than she to the position. This attitude was best expressed to Professor Sophonisba P. Breckinridge of the University of Chicago (the first woman to receive a Ph.D. in political science):

Of course, my real task is to do my work here with all of the intelligence and energy and uprightness that there is in me, and I am trying to do that without thought of anything else.54

The timing of the second vacancy was awkward, since Judge Allen was presiding over the critically important TVA case.55 A nomination to the Supreme Court before the decision came down might appear to be the most blatant form of bribe. But she evidently cherished some hope for elevation, nevertheless, which the district judges working on the TVA case with her recognized. On the morning of the announcement of Reed's appointment to the Sutherland seat, Judge John Gore told Judge Allen to smile when she entered the courtroom, so that the watching reporters could not impute to her a disappointment.56

By early 1939, following the failure to win the second vacancy, the headquarters of the campaign was firmly established out of Florence Allen's own home and office. Judge Allen's cousin, who made her home with the judge, was in charge of communications among the scattered supporters. She agreed with Judge Martin's analysis that the letter campaign must be organized before the next (Brandeis) retirement.57 The cousin reported: "Things seem to be moving in the right direction as far as I know: I can only hope for the best."58

At the time of the 1939 vacancies, Florence Allen made her claim to intellectual qualification for the court by preparing a book, entitled This Constitution of Ours.59 The book was written at the level of a course in good citizenship, appropriate for the immigrants for whom she showed so much compassion at the settlement house and later at naturalization ceremonies in the federal court. Since her time was absorbed by her speeches and writings, she assigned the task of collation and the integration of other research material to women friends in New York. Upon publication she sent autographed copies to the Justices of state Supreme Courts, to university professors, to Solicitor-General Biddle, to Eleanor Roosevelt, to William Allen White, and to lawyers in large firms. She even persuaded a friend to write a complimentary review for the University of Chicago Law Review. The content of this book revealed her fierce dedication to constitutional principles. Had Roosevelt invited Frankfurter to evaluate the book, she would necessarily have come off poorly as a scholar.

In 1939 she also began work on an autobiography, with the help of a ghost writer. Putnam's provided an advance and expected a manuscript by the fall of 1940.60 If the story of her life sold widely, as Eleanor Roosevelt's had, she might be able to develop the national constituency which she needed to undergird her Supreme Court ambitions. She also put her hopes on the income from book sales to help pay off heavy debts, incurred during the crash of 1929 from signing notes for friends.61 However, the autobiographical project was lost in the press of other business, and did not appear until a year before her death.

By the period of the Truman administration Judge Allen had forgotten how seriously she had pursued her Supreme Court ambitions. Carrie Chapman Catt wrote to Judge Allen in 1946 that she had been asked to join a campaign to put her on the Supreme Court and replied that she was proud of her "holding the highest court position of any woman in the world." Mrs. Catt warned that the politics of the Truman era "doesn't include giving more places to women" and asked forgiveness for her unresponsiveness.62 Judge Allen answered that "I have many times told my friends things very similar to what you say in your letter; and I have not lifted my finger to stimulate or even to encourage any campaign in my behalf."63 There was little prospect of lightning striking at this late stage of her career, although she continued to work as a judge for twenty more years. The 1948 dinner, which she proudly described to her family members in California in terms of the famous federal and state judges who honored her, was a valedictory to her ambition.64

The Intermediaries

Eleanor Roosevelt and Molly Dewson, the director of the Woman's Division at the Democratic National Committee, were the insiders who acted as intermediaries for those women who wanted a voice or a place in the Roosevelt administration, but had no direct access to the President, Cabinet, or presidential staff. These two invited effective women to campaign for the New Deal. They then demanded patronage awards for these workers on the same basis as for men who helped politically.

Joseph Lash has claimed that Eleanor Roosevelt was "at the center of this growing New Deal political sisterhood,"65 but Molly Dewson spent full time on the interests of the party and women in the party. One year after the first inauguration, Eleanor Roosevelt persuaded Jim Farley to provide funds and status to the Women's Division. In January, 1934, Molly Dewson arrived to accept the director's position with a list of sixty women qualified by their participation in the 1932 campaign and by their abilities to take high public office. Whenever Dewson was unable to move the males who had the appointing powers she appealed to Eleanor Roosevelt to take the matter up with the President or with the appropriate Cabinet members.66

Molly Dewson and Eleanor Roosevelt were key factors in Allen's nomination to the Sixth Circuit. Judge Allen wrote to Dewson in 1934: "I never can tell you how I feel about your coming to the front for me as you did . . . you helped me over the biggest hurdle."67 When Allen's Supreme Court ambitions were in flower, Molly Dewson had retired, but she sent a brief personal note with her usual light touch to FDR: "Of course if you did appoint Florence Allen it would be STUPENDOUS for us girls, My love to you."68

There is no doubt that Florence Allen made an effort to develop a friendship with Mrs. Roosevelt, but her court work often interfered with her opportunities. The judge believed that Mrs. Roosevelt had known about her for a long time through mutual friends connected with the Henry Street Settlement.69 Right after the 1933 inauguration, Florence Allen got in touch with Mrs. Roosevelt to report on the "excellent reaction . . . to the appointments that the President has made of outstanding women."70 Mrs. Roosevelt responded with an invitation to see her in Washington.71 In the fall Judge Allen let Mrs. Roosevelt know of a court holiday when she planned to be in D.C. but Mrs. Roosevelt was out of town and their closer acquaintance was further delayed.72

Allen described her later relationship with the presidential couple thus:

While the president appointed me to this really distinguished position, he never set eyes on me until long after the appointment. I have met Mrs. Roosevelt casually a number of times, but I do not feel that I have anything like the connection with her that I do have with other women who have worked in the woman movement just as she did.73

After 1934, Mrs. Roosevelt found many occasions to notice Judge Allen's position and accomplishments in her published articles. Allen appreciated that Mrs. Roosevelt was able to give her some of the national attention which she would need to become a viable candidate for the Supreme Court.74 She was quick to tell Mrs. Roosevelt of her embarrassment when a women's group announced support for Allen as a presidential candidate in 1936.75 Although she could not participate as openly as she had in 1932, Allen wanted no doubts raised about her loyalty to FDR. Immediately after his landslide victory in 1936, Allen wrote on her circuit letterhead of her joy at the outcome: "My only regret is that I could not have lifted my voice here and there."76

Judge Allen always gave priority to her court business, although it interfered with her development of a close relationship with Mrs. Roosevelt, which could have been instrumental in her further ambitions. In 1936 she refused an invitation from a Cleveland women's group to introduce Mrs. Roosevelt because she could not leave the court in Cincinnati without a quorum. She explained to Mrs. Roosevelt: "I am torn greatly between my desire to hear you speak and to be able to say in public what admiration I have for your courage . . . But after all my first obligation is here. . . ."77 The Judge politely refused Mrs. Roosevelt's somewhat indiscrete invitation to sup at the White House, while she was sitting on the TVA case in Chattanooga.78

Judge Allen kept up a careful friendly correspondence with Eleanor Roosevelt, noting the setbacks and successes of the Roosevelt family.79 She was also very anxious to defend her integrity to Mrs. Roosevelt. When a Detroit columnist made accusations about her payment of federal income taxes she wrote to Mrs. Roosevelt that the statements were entirely untrue: "I have paid income tax ever since my appointment to this bench, have never questioned the tax, and in fact have repeatedly stated that judges ought to be taxed like any one else." Mrs. Roosevelt noted on the letter that she showed it to the President and "he understands."80

Mrs. Roosevelt herself had a deep commitment to the participation of women in politics, particularly in pursuit of peace and social welfare goals, but no specific dedication to Florence Allen's advancement above the circuit court. Her view, expressed in the negative, was that there was "no reason why a woman should not be appointed to the Supreme Court."81 But Mrs. Roosevelt did use her "My Day" column for a trial balloon for the Allen Supreme Court candidacy.82 Allen reported that Mrs. Roosevelt told her at the White House that she regretted that Allen had not been appointed to the Supreme Court,83 (and no doubt she did). Yet, there is no evidence that she put her full efforts into the elevation. At the 1948 New York University Law School dinner in honor of Judge Allen, Mrs. Roosevelt sent a powerful message, a compliment with little practical political force because of the judge's age:

. . . if a President of the United States should decide to nominate a woman for the Supreme Court, it should be Judge Allen. She will be a nominee with backing, on a completely non-partisan basis, of American women who knew her career and accomplishments.84

Opposition to Judge Allen

While Judge Allen generally enjoyed good relations with the press,85 two papers made direct assaults upon her character and her ability when she was under consideration for the Supreme Court in 1939. In a gossip column about Washington events, a Detroit Free Press reporter wrote, crediting the Treasury Department for the information, that Judge Allen was "egging" on Eighth Circuit Judge Joseph Woodrough in his suit questioning the constitutionality of federal taxation of federal judicial salaries.86 Following the advice of two jurist-friends, Harold Stephens of the U.S. Court of Appeals for the D.C. Circuit and Judge Martin in Tennessee, she sent a private explanation to Mrs. Roosevelt.

In early 1939 Drew Pearson reported that FDR had considered "the Ohio jurist" but dropped her from consideration because the Attorney General showed him a record of reversals worse than that of any other prominent federal judge.87 To repair the damage, Judge Allen phoned the Reporter of the Ohio Supreme Court and asked him to follow up on the cases she decided in Columbus,88 while the Clerk of the Sixth Circuit checked the fate of her federal opinions since 1934. In eleven years on the Ohio Court she was reversed twice by the U.S. Supreme Court. In five years on the Sixth Circuit she had been reversed once.89 While some women friends in Chicago wrote to Attorney General Murphy asking for an explanation, others passed on the correct information to influential women in Washington.90 The Attorney General responded directly to Judge Allen that "I have frequently had occasion to express the highest regard for your ability and qualifications for judicial service and accordingly it distresses me greatly that a statement should be published that does so great an injustice to you."91 Such calumnies indicate that some persons involved in the selection process took Florence Allen's candidacy in 1939 very seriously. Her own reaction also reveals the deep ambition below her public disclaimers: "They meant to kill me off forever."92

The Roosevelt Justices

First Appointment (Hugo Black)--The defeat of the President's bill to pack the Court in 1937 was to influence Roosevelt's selection of the nominees for the Court. He was to reward those who supported him during the bitter fight. Those who openly rejected the plan forfeited any future claims to a seat.

Senator Joseph T. Robinson of Arkansas, who had managed the court-packing bill, had been promised the first available seat. When Robinson died of a heart attack during the battle, the President realized that the bitterness that had been engendered in the Senate almost required another Senator be chosen to fill the seat being vacated by Justice Van Devanter. In Hugo Black, FDR found a Senator who met his own requirements on loyalty or court packing, New Deal ideology, reasonable youth, and geography (from the South or West).93 Professional competence was subordinate to political confidence as a criterion for selection at the time of Black's appointment, although a brilliant tenure was to result.94 While Judge Allen was the right age and had the right New Deal views, she was not really in a position to compete, because she came from the wrong region and was not a Senator.

Second Appointment (Stanley Reed)--When George Sutherland left the Court, FDR's concern about under-representation from the West (Sutherland was from Utah) was secondary to his personal knowledge of the character and loyalty of his Solicitor-General, who had defended New Deal programs against heavy odds, and had kept out of the court-packing controversy. Florence Allen's decision in the TVA case had rescued only one important New Deal program, and she lacked personal acquaintance with the President.

1939 Appointments (Felix Frankfurter and William O. Douglas--There were two vacancies to fill in 1939--the seats of Cardozo and Brandeis. Protestant Judge Allen was eliminated for consideration for one of the seats by ethnic considerations. FDR was to decide upon his long-time policy adviser, Felix Frankfurter, for the Cardozo seat. Roosevelt and Frankfurter were intimate friends, who had known each other for over thirty years. However, before he selected Frankfurter, Roosevelt, aware of Western claims to a Supreme Court seat, had Frankfurter "check out" University of Iowa Law School Dean Wiley Rutledge, and read the opinions of several sitting judges. It is quite possible that Florence Allen was among that list of judges. However, no judge on an inferior court could match Frankfurter's long and close association with FDR.

The second vacancy in 1939 went to another academic, who had firm credentials as an office-holding member of the New Deal, William O. Douglas. Like Frankfurter, Douglas thought that Justice Brandeis suggested him to FDR as his own successor.95 Although Douglas was a registered voter in Connecticut, his supporters, including Senator Robert LaFollette and Attorney General Frank Murphy, worked to convince FDR that his childhood in the state of Washington made him acceptable to Western Senators. Douglas had firm backers inside the White House in Thomas Corcoran, Ben Cohen, and Jerome Frank.96 Douglas' closest competitor was Senator Lewis B. Schwellenback of Washington state, a close friend of Justice Black, and a vigorous campaigner on behalf of court-packing,97 who received as consolation prize a district judgeship.

There were, however, others on the Attorney General's list of candidates, including another academic lawyer, Lloyd Garrison, Dean of the University of Wisconsin law school; western circuit judges--Joseph C. Hutcheson (Texas), Sam A. Bratton (New Mexico) and Judge Harold M. Stephens (Utah).98 Florence Allen did not appear on this list circulated in the White House, although the newspapers reported that she and Wiley Rutledge--who had been considered for the Cardozo seat--were contenders.99

Fifth Appointment (Frank Murphy)--In 1940 the President filled the seat vacated by Pierce Butler of Minnesota with Attorney General Frank Murphy of Michigan, satisfying the representational requirements of religion and geography. Murphy had a range of executive experiences as Mayor of Detroit, High Commissioner of the Philippines, and Governor of Michigan. His appointment also permitted FDR to reshuffle his cabinet prior to his third term campaign.

In his role as Attorney General, Murphy had provided the President with a list of fourteen eligible males,100 including the three circuit judges who had been considered for the Brandeis seat, and a number of Cabinet members. Roosevelt ignored the list. Despite Murphy's protestations of lack of technical competence, FDR moved him up and out of the Department of Justice. Judge Allen did not appear on the list. She did not fit the religious criterion, nor the President's inclination to place members of his administration team on the bench.

Third Term Choices (James Byrnes and Robert Jackson)--In the first year of his third term, as U.S. entry to the war approached, the President filled the seats vacated by McReynolds and Stone (elevated to the Chief Justice chair upon Hughes' retirement). FDR again made his choices from the Congress and the Executive branch. He had asked Justice Frankfurter to check out Judge John J. Parker of the Fourth Circuit. Years before Parker had been nominated by Herbert Hoover, but had failed of confirmation. Frankfurter gave a lukewarm evaluation of "clear and painstaking," but not "fresh and creative" opinions.101 James Byrnes, Senator from South Carolina, was appointed in his stead, rewarded with the seat left by another southerner, for being an "effective agent" of administration policies in the Senate since 1933. Quick and unanimous confirmation saved presidential energies for the more critical foreign issues.102 Robert Jackson had known Roosevelt in his Albany days. He had worked in the FDR campaign in 1932, and came to Washington as General Counsel of the Internal Revenue Service. He had made a superb reputation as Solicitor General. Jackson had taken a whole-hearted part in the court reorganization fight. His book, The Struggle for Judicial Supremacy, expressed his views on the proper role of the Court.103

Thus, the selections again came from inside the political family. Although Florence Allen was an ardent New Dealer, she had not shared in the New Deal's Washington battles, nor was there a need to "get her out of politics."

The Last Chance: Eight New Nominee (Wiley Rutledge)--When Justice Byrnes left the bench, Roosevelt finally chose a circuit judge, who represented the West (Iowa) and was not close to the New Deal. Wiley Rutledge had been waiting in the wings, the candidate of many, since 1939. He had been appointed to the U.S. Court of Appeals for the D.C. Circuit, the day after he had lost the Brandeis vacancy to Douglas. He met the ideological requirements, as he had been sympathetic to the President over the court-packing struggle, and possessed liberal economic and nationalistic beliefs. During wartime, Roosevelt's attention was elsewhere and a fierce competition developed among the backers of a number of other viable candidates, among them Judge Learned Hand of the Second Circuit (supported by Chief Justice Stone and Justice Frankfurter), Senator Alben Barkley, Solicitor General Charles Fahy, Judge Parker, and Dean Acheson. The Attorney General invited three Justices--Black, Douglas and Murphy--to react to the published opinions of Rutledge. Their reactions were favorable. Rutledge's followers arranged for letters and endorsements to flow from bar associations, law faculty, and newspaper editors to the White House and the Justice Department to offset his lack of political clout.104

Indeed, Rutledge was the only Roosevelt nominee without strong political credentials. His claim was based on his intellectual and legal skills. Allen's background was appropriate for this appointment. The other Roosevelt appointees had combined an academic background with executive public offices, or trial court experience with elected office. Florence Allen lacked academic connections, extensive executive responsibilities, and a legislative background, although by the time of FDR's first appointment in 1937, she had had seventeen years of bench experience (fifteen on important appellate courts). She was well prepared for the judicial role, but, without the opportunities afforded by positions in the other two branches, she was unable to demonstrate her mettle as a partisan and policymaker. FDR wanted persons on the Court who would be representative and who would be sensitive to political demands and needs. Allen was a professional judge.

The Truman Justices--President Truman made four appointments to the Supreme Court. He used the first vacancy to solidify an "era of good feeling" with the Republican opposition by choosing his crony, Senator Harold Burton, to take the place of Owen Roberts, replacing one Republican with another. According to the newspapers, the others on the short list were also Republicans--Under Secretary of War, Robert Patterson, who was also a former federal judge; and Senator Warren Austin of Vermont.105

Florence Allen clearly was well located geographically for this appointment, as an Ohio man was selected. She lacked the personal relationship with the President and membership in the Republican Party. In addition, the influence of women on the appointing President was weak.

The women in the party who pushed women candidates for appointment did not develop close relations to the President until his second term. During the Roosevelt administration Molly Dewson, director of the Woman's Division, could and did go directly to the White House with her demands. She continued her pressures from retirement upon FDR's successor, writing in 1946:

Dear Mr. President: If there ever should be an opening on the U.S. Supreme Court bench and you thought it a psychological moment to make a grand dramatic gesture toward women--who claim they are pretty sad about their lack of recognition by you--why do you not appoint Florence Allen of Ohio now on the U.S. Circuit Court of Ohio, Michigan and Kentucky to the Supreme Court?106

India Edwards had to work through the chairman of the Democratic National Committee, until she showed Truman what the women could do in the 1948 campaign.107 Edwards did think that Truman had a high general evaluation of women's brains and ability and that he came close to naming Florence Allen.108 Lucy Howorth agreed that Truman had no personal opposition to women in office or politics. However, women had no direct access to the President. His White House coterie was all male.109 Nor did Bess Truman play the role of facilitating ambitious women that Eleanor Roosevelt had played with her husband. Thus while Truman may have had generous attitudes towards women, he did not translate them into judicial appointments. Of twenty-seven nominations to the circuit level, all were male. Of ninety-three appointments to the district court, only one was female. As a result, his record was the same as FDR's--one woman appointed to the federal courts.

In 1946, in an attempt to reduce internal dissension. President Truman selected a new Chief Justice from outside the Court. Fred Vinson was another close associate of the President, but he did bring an unusual combination of public experiences. Florence Allen was not in competition to be Chief Justice. No politician in the middle 1940s would have made a woman Chief Justice.

A group consisting of Donald Dawson, of the President's staff, Peyton Ford for the Attorney General, and Senator J. Howard McGrath for the Democratic National Committee, discussed a list of six names for the vacancy caused by Frank Murphy's death. There were four sitting judges, the Secretary of War (a former federal judge) and McGrath himself.110 Truman selected someone not on the list, his Attorney General Tom Clark, a personal friend whom he knew as chief of war frauds during his investigation committee period. Clark was a Texas protege of the powerful Senator Tom Connally. It was reported at the time that Chief Justice Vinson approved of the choice.111

Personal friendship was also the basic factor in Truman's last appointment to the Court: Sherman Minton. They entered the Senate together as freshmen and sat at adjoining desks.

Florence Allen did not have the New Deal congressional experience, nor the wartime cabinet experience, which made the four male Justices viable candidates to Truman. She had a longer preparation on the circuit level than Vinson or Minton. Their judicial background gave them credibility, but did not significantly improve their entitlement to the place. It is clear that the odds were against Florence Allen, regardless of her sex, for at least ten or eleven of the twelve appointments during these two Democratic administrations.

Objective Criteria: Age, Sex, and Veteran Status

Most of the qualifications for a position of authority are subjective. It is difficult to measure and to compare the attributes of candidates. A few qualifications are objective: once the appointer decides whether he wants to apply an age, or a sex, or a race, or a religious criterion, the candidates can be appropriately included or excluded on that basis. From the examination of the twelve appointments, it is clear that Allen was excluded from several competitions on the basis of religion, never on the basis of race. The extent to which her age and her sex and related veteran status had an impact upon her candidacy will be discussed.

Age: the Flexible Criterion--Following the court-packing struggle, the Democratic Presidents took care to select persons at an age which would ensure ten or fifteen years of service prior to a reasonable retirement age. The average age of the Roosevelt nominees was 54 and of Truman's nominees 55.112

Florence Allen met the age requirement during the FDR period. At the time of the Black selection in 1937 she was fifty-three. When the Byrnes seat was relatively open to competition in 1943, she was fifty-nine. But during the Truman period she was over sixty. When India Edwards felt that she came close to persuading Truman to make the appointment she was sixty-five, a matter which would certainly have been raised at confirmation hearings.

Sex/Veteran Status--Florence Allen lacked a qualification closely associated with sex identity which has been throughout U.S. history an important credential for public office -- veteran status. Nine of the twelve new appointees during the Democratic administrations had some military status during and after World War I. President Truman, whose 1918 overseas experience was a significant event in his personal life, only chose veterans.113 Florence Allen was not eligible for combat service. Indeed, she opposed the draft. Her most significant personal ideal was world peace. She was closer to Eleanor than to Franklin in her foreign policy views; more alien to Truman's perspective than to FDR's. Both her age and her sex/veteran status disqualified her for the four Truman seats; but not for the eight FDR places.

Why Florence Allen Did Not Reach the Supreme Court

Attaining high judicial office is a chancy matter. The pool of candidates with the necessary political and professional qualifications is small in comparison with the general population, but large in proportion to the number of places at the top. In the pool of candidates, Florence Allen was the first and the only woman in the 1930s and 1940s. As one of her woman backers who was also a judge pointed out: "Judge Allen is at the present time the only woman lawyer in the United States, whose ability, training, experience, and personality qualify her for the position. . . ."114

If the President's political intuition had told him that the country was ready for a woman on the Court and that such an appointment would benefit his administration, he would have had no choice among representatives of the female sex. She was the only available woman. The first woman is likely to go on the Court when the President has more room for selection. The female pool of legal professionals in important judgeships and other political offices did not expand until the 1970s.

President Roosevelt would have been moving ahead of public opinion in choosing a woman justice in the 1930's. The Gallup polls, responsive to the news reports of Allen's candidacy, posed the issue to the public in 1938: "Would you favor the appointment of a woman lawyer to be a judge on the U.S. Supreme Court?" A very large minority, 39%, were favorable.115 But the public was expressing a theoretical support for females in government, because the Gallup poll reported a different level of response to a more concrete question: "Would you like to see the next appointment to the U.S. Supreme Court go to a man or a woman?" Only 18% wanted a woman who would necessarily have been Florence Allen.116 News reporters sensed that the political elite as well as the public rejected the notion of a woman on the Court in the 1930's. The Baltimore Sun claimed that: "A lot of people have recoiled from the prospect of a woman on the Supreme Court. To them the thing is almost unthinkable."117 President Roosevelt knew that his nomination of Allen would suit only a small minority of his constituents. Although he did not hesitate to disappoint particular persons or groups, he was sensitive to the larger forces of public approval.

To what extent did the wishes of the sitting Justices to keep their sanctum all-male influence the appointing authorities? As long as the appointer is concerned about the productivity of the work group, the feelings of the incumbents will necessarily be taken into account. But the ability of sitting Justices to influence the choice of a colleague depends upon a variety of conditions. Roosevelt was certainly not concerned to cater to the prejudices of the "nine old men." A President who was willing to throw a "tiger" into the Court in 1937 would not have hesitated to send in a lioness. After he had placed a number of close associates on the Court, particularly Frankfurter, he consulted their preferences on prospective colleagues. However, the biases of the incumbents are never the most salient considerations for a President.

President Truman apparently bowed to the wishes of his Court, but as we have seen in the brief review of the appointment process, there were other candidates whom he had good reason to prefer. India Edwards, director of the Women's Division of the Democratic National Committee in 1949-1950, reports that Truman was responsive to her recommendation of Florence Allen for the Supreme Court. In her oral history, she reports his reaction: "Well, I'm willing. I'd be glad to. I think we ought to have a woman. But I'll have to talk to the Chief Justice about it and see what he thinks." When she returned to the White House to hear the decision, the verdict was: "No, the Justices don't want a woman. They say they couldn't sit around with their robes off and their feet up and discuss the problems." India Edwards said: "They could if they wanted to."118

The fates were not kind to Judge Allen. If Truman had been in confrontation with the Court, he would not have hesitated to ignore their preferences based upon this flimsy ground. But he did have a male's understanding of their resistance, and during this period such reasons were still socially acceptable.

Justices clearly do have some input into the evaluation of candidates. Sometimes they have a veto, although their critical evaluation of a candidate's experience and ability may simply cloak their prejudices. Sometimes Justices may provide the approval which tips the scales among contenders. There is no indication that Florence Allen had a champion from within the Court. During her campaign for the circuit bench, former Justice John H. Clarke, an old friend of her father, had played an important part.119 But he was not involved in her Supreme Court effort. In any event, in retirement in California, he would not have had the influence of a sitting Justice.

Why was President Roosevelt willing to nominate Florence Allen to the Court of Appeals but not to the Supreme Court? Her supporters assumed that a seat on the Supreme Court could be achieved with the same kind of campaign and for the same reasons as the intermediate appellate position. Florence Allen was less naive than her dedicated supporters. She understood the difference in the two selection processes. In retrospect she wrote that from the first mention of her name for the Supreme Court "I did not then nor ever expect such an appointment."120 She knew that selection was a political lottery. For that reason she did not discourage the efforts of friends, but she also realized that she was not personally close enough to the President or to the Washington inner circle.

When she was appointed to the circuit bench, the Ohio Senator had been the key figure. President Roosevelt invested little of his own political capital in sustaining the Senator's choice through his party, Justice Department, and White House apparatus. In contrast, his appointments to the Supreme Court could become his own political liabilities. He had not been close to the reactions of the judges on the Sixth Circuit, who were opposed to her joining them,121 nor would the unhappiness of the party in Ohio affect him as much as it would the Senator. On the other hand, he was immediately cognizant of the feelings of the Supreme Court Justices in Washington, of the Supreme Court Bar, of his Solicitor General, and national party leaders in Congress and the Democratic National Committee. The political costs might escalate. As the public opinion polls showed, the political rewards would be small. The letter-writing campaign which worked so well in 1934 to win an office largely controlled by state political figures was simply not effective in winning a nomination which involved the complex political calculations of a President.

The theory behind the efforts of her supporters was the selection of a Supreme Court Justice hinged upon personal qualities. They were offering a marvelously qualified candidate, and they did not appreciate the multitude of other considerations involved in the President's choice of a Justice. From the President's perspective, Florence Allen was satisfactorily placed where she was, exemplifying his concern for women's status. Nor did FDR need to free her position to someone else, as the size of her circuit bench doubled, giving him three more appointments. Nor did he need her in Washington as a personal advisor. He did not view her as a potential rival for the Presidency, who needed to be sidetracked. Nor was he indebted to her or her friends for an important contribution to his administration's legislative or executive policies or to the party's coffers. While trial judges have found themselves on the circuit bench for their management of cases important to some administration, a single case, even the TVA decision, was not the kind of continuing service which created a reason for a High Court appointment. Finally, Allen's nomination would have created problems to which Roosevelt did not want to divert administration energies. Confirmation hearings would probably have been long and vexing.

Thus from the presidential perspective there were few reasons to make such a choice. Apart from personal qualities, Allen's claim to a seat was representational. The forces behind her campaign sprang from the energies of the woman suffrage and reform movements. But women were a dwindling force in politics after 1920. Florence Allen did not have a large enough constituency to demand the recognition of a Supreme Court seat. Women were not able to build that constituency for many more years.122

Notes

1 Florence Allen to H.C. Herring, March 17, 1934, Florence Allen Papers, Western Reserve Historical Society Library (hereafter FA Papers), Container 6, Folder 5.

2 Shirley M. Hufstedler was the second woman appointed to a U.S. Court of Appeals, the ninth Circuit, in 1968, almost ten years after Florence Allen's retirement. She accepted President Carter's appointment to his Cabinet as Secretary of the new Department of Education in 1979. The eleven women now on the circuit level were appointed by President Carter between 1978 and 1980: Patricia Wald and Ruth Bader Ginsburg (D.C.); Amalya Kearse (Second); Dolores Sloviter (Third); Phyllis Kravitch and Carolyn Randall (Fifth); Cornelia Kennedy (Sixth); Mary Schroeder, Dorothy Nelson, and Betty Fletcher (Ninth); and Stephanie Seymour (Tenth).

3 Robert Scigliano, The Supreme Court and the Presidency (New York: The Free Press, 1971) p. 89.

4 Ibid., p. 124.

5 David W. Rohde and Harold J. Spaeth, Supreme Court Decision Making (San Francisco: W.H. Freeman & Co., 1976), pp. 103-106.

6 Scigliano, supra n.3, pp. 105-124.

7 Ibid., pp. 46-49.

8 Florence Ellinwood Allen, To Do Justly, Cleveland, Ohio: The Press of Western Reserve University, 1965, pp. 24-25.

9 Ibid., pp. 46-49.

10 La France Electrical & Supply Co. v. IBEW, 108 Ohio 61 (1923).

11 Ohio Automatic Sprinkler Co. v. Fender, 108 Ohio 149 (1923).

12 State ex rel Weaver v. Board of Trustees, 126 Ohio 290 (1933).

13 The first women nominated to the Sixth Circuit after Florence Allen, Cornelia Kennedy, faced in 1979 similar opposition from black organizations, which accused her of racism in the handling of criminal cases as a Federal District Judge. Helen Fogel, "What's all this about Cornelia?" National Law Journal, May 14, 1979, pp. 1, 12.

14 Allen supra n. 8, pp. 41-44.

15 Ibid., p. 63.

16 Ibid., pp. 41, 77.

17 Congressional Quarterly Guide to U.S. Elections, 1975, p. 774. The incumbent Republican who defeated her served in the House for five terms. He was succeeded by his wife, Frances Bolton.

18 John R. Schmidhauser, Judges and Justices (Boston: Little, Brown & Co., 1979) p. 211.

19 Allen, supra n. 8, pp. 36-37.

20 FA Papers, Cont. 6, Folders 5, 6.

21 Schmidhauser, supra n. 18, p. 94.

22 Allen, supra n. 8, pp. 109-111.

23 Schmidhauser, supra n. 18, p. 96.

24 Beverly B. Cook, "Florence Ellinwood Allen," in Notable American Women: The Modern Period, in (eds) Barbara Sicherman and Carl H. Green, (Cambridge, Mass.: Harvard University Press, 1980), pp. 11-13.

25 Schmidhauser, supra n. 18, p. 52.

26 See, e.g., David J. Danielski, A Supreme Court Justice is Appointed (New York: Random House, 1964).

27 Grace S. McClure to Florence Allen, May 19, 1937, FA Papers, Cont. 6, Fold. 6.

28 Raymond Robins to Florence Allen, Jan. 26, 1938, FA Papers, Cont. 6, Fold. 6.

29 Robert S. Marx to Florence Allen, Jan. 11, 1938, FA Papers, Cont. 6, Fold. 6.

30 Mr. Nichols to Franklin D. Roosevelt, Jan. 11, 1938, FA Papers, Cont. 6, Fold. 6.

31 Mr. Nichols to Eleanor Roosevelt, Jan. 11, 1938, FA Papers, Cont. 6, Fold. 6.

32 John D. Martin to Mary C. Pierce, Jan. 16, 1939, FA Papers, Cont. 6 Fold. 6.

33 Homer C. Cummings to Franklin D. Roosevelt, Roosevelt Official Files, Franklin D. Roosevelt Presidential Library (hereafter FDR Papers), June 11, 1938, OF 209-F, Cont. 6.

34 Dorothy McAllister to Stephen Early, Mar. 9, 1939, FDR Papers, OF 41-A, Cont. 127, File A.

35 Kathryn McHale to Franklin D. Roosevelt, Nov. 24, 1939; Mary Drier to Franklin D. Roosevelt, Dec. 5, 1939; Annabel Matthews to Franklin D. Roosevelt, Feb. 28, 1939; copies in FA Papers, Cont. 6, Fold. 6, and FDR Papers, OF 41-A; Cont. 127, File A.

36 Sue Lakes to Florence Allen, Feb. 2, 1939, FA Papers, Cont. 6 Fold. 6.

37 John Martin to Mary Pierce, Feb. 23 1939, and Mar. 4, 1939; John Martin to Harriet Elliott, Mar. 4, 1939, FA Papers, Cont. 6, Fold. 6.

38 Celia M. Howard to Alice Greenacre, Jan. 27, 1939, FA Papers, Cont. 6, Fold. 6.

39 Sarah T. Hughes to FDR, Dec. 16, 1939, FDR Papers, OF 41-A, Cont. 127, File A.

40 Dorothy Kenyon to FDR, Dec. 18, 1939, FDR Papers, OF 41-A, Cont. 127, File A.

41 Anna M. Kross to Mary Anderson, Mar. 28, 1941, Mary Anderson Papers, Schlesinger Library, Folder 36.

42 Annabel Matthews to FDR, Dec. 16, 1939, FDR Papers, OF 41-A, Cont. 127, File A; Annabel Matthews to FDR, Mar. 4, 1938, FA Papers, Cont. 6, Fold. 6.

43 Mabel W. Willerbrandt to FDR, Feb. 16, 1939, FDR Papers, OF 41-A, Cont. 127, File A.

44 Mignon Patterson to FDR, Dec. 11, 1939, FDR Papers, OF 41-A, Cont. 127, File A.

45 Washington, D.C. Times Herald, Mar. 15, 1939.

46 W.A. White to FDR, Nov. 28, 1941, FDR Papers, OF 335-E, Box 12.

47 Helen Essary, "Dear Washington" column, Washington, D.C. Times-Herald, Mar. 15, 1939.

48 E.g., "Florence Allen Gains Favor as High Court Candidate," in Washington, D.C. Times-Herald, Mar. 14, 1939, p. 2; Celia Howard to Alice Greenacre, Jan. 27, 1939, FA Papers, Cont. 6, Fold. 6; Baltimore Sun, Mar. 12, 1939, FDR Papers, OF 41-A, Cont. 127, File A.

49 Baltimore Sun, Mar. 12, 1939.

50 Harold Elliott to Florence Allen, Jan. 30, 1941, FA Papers, Cont. 7, Fold. 1.

51 Florence Allen to H.G. Fuerst, May 18, 1936, FA Papers, Cont. 6, Fold. 6.

52 Florence Allen to Grance S. McClure, FA Papers, May 21, 1937, Cont. 6, Fold. 6.

53 Josephine Montgomery to Florence Allen, Feb. 9, 1937, FA Papers, Cont. 6, Fold. 6.

54 Florence Allen to Sophonisba P. Breckinridge, Mar. 11, 1937, FA Papers, Cont. 6, Fold. 6.

55 Allen, supra n. 8, p. 110.

56 Ibid.

57 John D. Martin to Mary C. Pierce, Feb. 23, 1939, FA Papers, Cont. 6, Fold. 6.

58 Mary Pierce to John Martin, Mar. 2, 1939, FA Papers, Cont. 6, Fold. 6.

59 (New York: G.H. Putnam's Sons, 1940).

60 Earl H. Balch to Florence Allen, Jan. 28, 1939; Kenneth L. Rawson to Florence Allen, Mar. 9, 1939, FA Papers, Cont. 6, Fold. 6.

61 Allen, supra n. 8, p. 78.

62 Carrie Chapman Catt to Florence Allen, May 10, 1946, FA Papers, Cont. 7, Fold. l.

63 Florence Allen to Carrie Chapman Catt, (n.d.), FA Papers, Cont. 7, Fold. 1.

64 Florence Allen to "Girls," Nov. 12, 1948, FA Papers, Cont. 7, Fold. 1.

65 Joseph Lash, Eleanor and Franklin (New York: W.W. Norton & Company, 1971), p. 387. In describing the book, Ladies of Courage (1954) on women in politics which she was writing with Eleanor Roosevelt, Lorena Kickok noted to Molly Dewson: "If it weren't for you and Florence Allen, we could call the book Housewives in Politics." Hickok to Dewson, Nov. 18, 1952, Molly Dewson Papers, FDR Library, Box 2.

66 Ibid., p. 388.

67 Florence Allen to Molly Dewson, Mar. 7, 1934, Dewson Papers, FDR Library, Box 1, File "Allen."

68 Molly Dewson to FDR, Mar. 16, 1939, FDR Papers, OF-41-A, Cont. 127, File A.

69 Allen, supra n. 8, p. 110.

70 Florence Allen to Eleanor Roosevelt, May 2, 1933, Eleanor Roosevelt Papers, FDR Library, Box 100, File 1253 (hereafter ER Papers).

71 Eleanor Roosevelt to Florence Allen, May 5, 1933, Ibid.

72 Florence Allen to Eleanor Roosevelt, Oct. 2, 1933; Eleanor Roosevelt to Florence Allen, Oct. 6, 1933; and Florence Allen to Eleanor Roosevelt, Oct. 10, 1933, Ibid.

73 Florence Allen to Herbert Herring, Dec. 30, 1936, FA Papers, Cont. 6, Fold. 6.

74 Florence Allen to Eleanor Roosevelt, Jan. 4, 1935, ER Papers, Box 100, File 1327.

75 Florence Allen to Eleanor Roosevelt, Feb. 12, 1935, Ibid.

76 Florence Allen to Eleanor Roosevelt, Nov. 5, 1936, ER Papers, Box 100, File 1364.

77 Florence Allen to Eleanor Roosevelt, Feb. 2, 1936, ER Papers, Box 100, File 1364; and Florence Allen to Eleanor Roosevelt, Sep. 23, 1938, Box 100, File 1448.

78 Allen, supra n. 8, p. 110.

79 Florence Allen to Eleanor Roosevelt, Sep. 12, 1939, ER Papers, Box 100, File 1448; Florence Allen to Eleanor Roosevelt, Nov. 10, 1944, ER Papers, Box 100, File 1705; Eleanor Roosevelt to Florence Allen, Nov. 9, 1936, FA Papers, Cont., Fold. 6.

80 Florence Allen to Eleanor Roosevelt, Dec. 7, 1938, ER Papers, Box 100, File 1448.

81 Allen, supra n. 8, p. 112.

82 Ibid., p. 110.

83 Ibid., p. 112.

84 Ibid., p. 144.

85 Ibid., p. 43.

86 "National Whirligig," Detroit Free Press, Dec. 6, 1938.

87 "Washington Merry-Go-Round," Washington Post, Mar. 24, 1939.

88 Allen, supra n. 8, p. 112.

89 J.L.W. Henney to Florence Allen, Apr. 5, 1939, FA Papers, Cont. 6, Fold. 6; Allen, supra n. 8, p. 112.

90 Alice Greenacre to Florence Allen, Apr. 18, 1939, FA Papers, Cont. 6, Fold. 6; Kathryn McCarthy to Alice Greenacre, May 17, 1939, Ibid.; Catherine McCulloch to Frank Murphy, Apr. 17, 1939, FDR Papers, OF 41-A, Cont. 127, File A; Frances Kellor to Mary Anderson, Sep. 6, 1939, Mary Anderson Papers, Schlesinger Library, Folder 30.

91 Frank Murphy to Florence Allen, May 5, 1939, FA Papers, Cont. 6, Fold. 6.

92 Allen, supra n. 8. p. 113.

93 James McGregor Burns, Roosevelt: The Lion and the Fox (New York: Harcourt, Brace & Co., 1956) p. 312.

94 Charlotte Williams, Hugo L. Black: A Study in the Judicial Process (Baltimore: Johns Hopkins Press, 1950) p. 1.

95 William O. Douglas, Go East, Young Man (New York: Random House, 1974), pp. 459, 463.

96 Washington, D.C. Times-Herald, Mar. 14, 1939, p. 2.

97 Douglas, supra n. 95, p. 460.

98 Fowler W. Harper, Justice Rutledge and the Bright Constellation (Indianapolis: Bobbs-Merrill, 1965), p. 33.

99 Washington, D.C. Times-Herald, Mar. 14, 1939, p. 2.

100 J. Woodford Howard, Mr. Justice Murphy (Princeton University Press, 1968), p. 216.

101 Max Freedman (ed.) Roosevelt and Frankfurter: Their Correspondence 1928-1945 (Boston: Little, Brown and Co., 1967), p. 581.

102 Carl B. Swisher, American Constitutional Development (Boston: Houghton Miffin Co., 1943), p. 959; Henry J. Abraham, The Judicial Process (New York: Oxford University Press, 1980), p. 76.

103 (New York: Alfred A. Knopf, 1941).

104 See Harper, supra n. 98, pp. 25 ff.

105 Allen, supra n. 8, p. 376.

106 Shannon, The Truman Merry-Go-Round (New York: Vanguard Press, 1950), p. 376.

107 Mary McGrory, "One of the Democratic Party's `Big Men' Is a Woman: India Edwards," Washington Star, 1948, in Howorth Papers, Schlesinger Library, Box 5, Folder 136.

108 India Edwards Oral History, Jan. 16, 1969, p. 84, Truman Library, Oral History Interview Collection.

109 Memorandum by Lucy S. Howorth (1958), Howorth Papers, Box 6, Folder. 120.

110 Peyton Ford to William M. Boyle, Jr., Aug. 2, 1949, Truman Papers, Truman Library Of 41.

111 Allen, supra n. 8, p. 388.

112 John R. Schmidhauser, supra n. 18, p. 388.

113 Harry S Truman, Memoirs: Years of Decision, I (Garden City, N.Y.: Doubleday & Co., 1955), pp. 127, 132. The non-veterans were Byrnes, Jackson, and Rutledge.

114 Annabel Matthews to Franklin D. Roosevelt, Mar. 4, 1939, FA Papers, Cont. 6, Fold. 6. Before Allen went on the Circuit Court there was no woman in the country considered ready for the Supreme Court, including herself. The Christian Science Monitor proposed her name to President Hoover for the Sanford vacancy in 1930, at the time she was on the Ohio Supreme Court. Attorney General William Mitchell wrote, "I would like very much to appoint a woman to a distinguished position if I could find a distinguished woman to appoint." William Mitchell to Herbert Hoover, Aug. 5, 1929, quoted in Schmidhauser, supra n. 18, p. 59.

115 Gallup Polls, AIPO, Nov. 4, 1936; Jan. 18, 1938.

116 Gallup Polls, AIPO, Jan. 18, 1938. In 1972 a Harris poll reported that 63% of the women and 54% of the men polled would like to see a woman Justice on the Court. Popular approval grew along with the size of the pool of eligibles. See: H. Erskine, "The Polls: Women's Role," Public Opinion Quarterly 35: 271, 282 (Summer 1971); Naomi Black, "Changing European and North American Attitudes towards Women in Public Life," Journal of European Integration 1:221-240 (Jan. 1978).

117 Baltimore Sun, Mar. 12, 1939, p. 6.

118 India Edwards Oral History, Jan. 16, 1969, Truman Library, p. 85.

119 Florence Allen to John H. Clarke, Mar. 20, 1934, FA Papers, Cont. 6, Fold. 5.

120 Allen, supra n. 8, p. 110.

121 Ibid., p. 95.

122 During the presidential campaign of 1980, President Carter invited the members of the National Association of Women Judges attending their second annual convention in D.C. to the White House and told them that he would fully consider women candidates although he would not promise the next vacancy on the Supreme Court to a woman. Press release, text of the President's remarks, East Room, Oct. 3, 1980, Office of the White House Press Secretary. Ronald Reagan, the Republican candidate, a week later in Los Angeles, pledged to name a woman to the Supreme Court. Milwaukee Journal, Oct. 15, 1980.

Back to 1981 Yearbook Table of Contents