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1970 The olitP ics of "Advice and Consent" William F. Swindler William & Mary Law School

Repository Citation Swindler, William F., "The oP litics of "Advice and Consent"" (1970). Popular Media. 269. https://scholarship.law.wm.edu/popular_media/269

Copyright c 1970 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/popular_media The Politics of "Advice and Consent" by William F. Swindler

Counting the rejections of Judges products of a political antipathy be- ITH THE SENATE'S rejection of Haynsworth and Carswell, there W Clement F. Haynsworth, Jr., last tween the Senate and the . are now twenty-three nominations November and G. Harrold Carswell But the rejection of President Hoover's to the Supreme Court that have last April, the number of unsuccessful nomination of John J. Parker in 1930, been defeated or postponed by the Presidential nominations for the Su- the filibuster against Lyndon Johnson's Senate or withdrawn by the President preme Court of the over proposal of Justice Fortas to succeed in the face of defeat. The Senate history now Chief Justice Warren and the two Sen- is jealous of its "advice and our 180 years of judicial consent" function, and history stands at twenty-six. Of this total, ate rejections of President Nixon's shows that confirmation will be eleven were rejected by a recorded vote nominees were prompted, with an in- withheld for a variety of reasons. and seven were withdrawn by the White creasing degree of recognition of the The process of confirmation or House when it became clear they fact, by the Senate's hostility to what is rejection by the Senate is a part of would not be approved. As to the other purported to be the constitutional phi- the American political system- eight, the Senate either took no action losophy of the candidates. Fortas's op- unavoidably, perennially and, or noted that action was to be "post- position couched its arguments in perhaps, logically. poned" indefinitely. 1 (See the tabula- terms of "cronyism", but it was fairly tion on page 536.) evident that the root of the matter was What these statistics tell about the his identification with broad and per- interrelationships between the legisla- missive doctrines on defendants' rights. tive and executive branches of the gov- Parker, Haynsworth and Carswell were ernment may be estimated best by re- opposed candidly for their basic con- viewing the contemporary circum- victions on socioeconomic issues of the stances of the nominations. Most of the day. cases of declined appointments, coming in the early days of the Republic, re- Partisanship and Politics flected a denigration of the Court itself Are Always Involved as a career opportunity for successful The elements of partisanship or po- or politicians. Most of the re- litical consideration in the selection of jections of nominees, it is apparent, judicial appointees have been present were incidents to a series of party in cases of confirmation as often as in struggles, as in the case of the fierce cases of rejection. "I observe that old contest between and Cushing is dead", wrote Thomas Jef- Senator David Hill for control of the ferson to in 1810 when Democratic machine in the Associate Justice 1880s, or in the case of , re- passed from the scene. "At length, jected by his own Whig Party in the then, we have a chance of getting a Re- bitter political divisions of 1844. A rel- publican [i. e., Democratic] majority 2 ative minority of the unsuccessful nom- in the Supreme Judiciary." James inations turned on the merits of the in- Polk, writing to in dividual nominees. 1837, observed with satisfaction that "with Judges Catron and McKinley It may be argued that a distinction on between the rejections of the nine- teenth century and the four to date in 1. Six others were approved by the Senate the twentieth century may be made on but refused to accept the appointments, while a seventh-Abraham 's Secretary of a basis of ideologies. The cases from War, Edwin M. Stanton-was confirmed but Washington's day through the second died before he could he commissioned and sworn in. administration of Grover Cleveland 2. Quoted in 1 BouDiN, GOVERNMENT BY were, almost without exception, by- JuDIcAaY 536 (1932).

June, 1970 * Volume 56 533 "Advice and Consent" the bench, the Court will be strong, tion of the constitutional process of ap- had served as an Associate Justice for and will have a decided Democratic pointment-the middle step between eighteen months and then resigned. bias". 3 In 1902 Presidential nomination and Presiden- But when Chief Justice re- commented to : "In tial commission. 7 The realities of the signed four years later, Rutledge lost the ordinary and low sense which we process in operation have not borne no time in writing to Washington that attach to the words 'partisan' and 'poli- out 's optimistic he would "have no objection to take tician,' a judge of the Supreme Court assumption: the place which [Jayl holds". Rut- should be neither. But in the higher ledge's letter makes clear that he felt It will be the office of the president sense, in the proper sense, he is not in to nominate, and with the advice and that the Chief's chair was the one he my judgment fitted for the position un- consent of the senate to appoint. There should have had in the first place, less he is a party man, a constructive will of course be no exertion of choice since "many of my friends were dis- statesman." 4 Roosevelt, incidentally, on the part of the senate. They may pleased at my accepting the office of defeat one choice of the executive, and Associate Judge, . . . conceiving (as I was referring to Oliver Wendell oblige him to make another; but they Holmes, a prospective nominee. cannot themselves choose--they can thought, very justly) that my preten- The politics of "advice and con- only ratify or reject the choice, of the sions to the office of Chief Justice were sent", manifest in many confirmations president. They might even entertain a at least equal to Mr. Jay's in point of as well as most rejections of Supreme preference to some other person, at the law-knowledge, with the additional very moment they were assenting to weight of much longer experience and Court nominees, is perhaps endemic in the one proposed; because there might practice". 1 the process set out in Article II, Sec- be no positive ground of opposition to much greater tion 2, of the Constitution.5 "The Sen- him; and they could not be sure, if Self-seeking and self-adulating as ate cannot originate an appointment. they withhold their assent, that the Rutledge's words may sound, it had Its constitutional action is confined to subsequent nomination would fall upon been rather generally recognized in their favorite, or upon any other per- 1789, when Washington was choosing the simple affirmation or rejection of son in their estimation more meritori- the President's nominations, and such ous than the one rejected. Thus it the first candidates for the new Su- nominations fail whenever it rejects could hardly happen that the majority preme Court, that fundamentally politi- them", stated an early nineteenth cen- of the senate would feel any other cal considerations were involved. John tury opinion of the Attorney General. complacency towards the object of an Adams himself had advised: "If ability appointment, than such, as the appear- is desired, take Rutledge; if politics, "The Senate may suggest conditions ances of merit, might inspire, and the and limitations to the President, but it proofs of the want of it, destroy.8 Jay." Washington knew precisely what cannot vary those submitted by him, he wanted; he not only took Jay for for no appointment can be made ex- Senate Prepares To Vote his first Chief Justice, but he saw to it cept on his nomination, agreed to with- Down for the First Time that every one of his appointments was '6 out qualifications or alteration." The Olympian detachment with a good Federalist. Now, perhaps to In the course of his struggle for which Hamilton assumed (or affected make amends, he hastened to accede to Judge Carswell's confirmation, Presi- to assume) that the Senate would ra- Rutledge's suggestion and him a dent Nixon wrote a manifestly ill-ad- tify or reject Presidential nominations , directing that the vised and ill-informed letter to Senator was dispelled within six years after the Secretary of State prepare his commis- William B. Saxbe of , in which he Constitution went into operation. Ham- sion forthwith. complained that failure of the Senate ilton himself wrote of the nominee for Having taken the first and third to "advise and consent" to the nomina- the Chief Justiceship in 1795 that "if it steps in the appointing process, Wash- tion amounted to denying the Chief be really true . . . that he has exposed ington placed himself in a position of Executive the right "accorded all pre- himself by improper conduct in pecu- depending utterly upon the Senate to vious Presidents" to place men of his niary transactions", he should be re- take the indispensable middle step. The choice on the bench. Not only is this jected, while a leading at- President should have recalled the contradicted by history, but it suggests torney added that the nominee's "in- that the Senate's ratification should be sensitivity" in certain public issues little more than pro forma, and it con- made it clear that he "ought not to pre- 3. Id. at 109. fesses what traditionally has been left side in the highest judicial Court of 4. 1 SELECTIONS FROM THE CORRESPOND- ENCE OF THEODORE ROOSEVELT AND HENRY 9 unsaid-that ideological and political the Nation". In these high-sounding CABOT LODGE, 1884-1918, 517 (1925). factors are elements in the Presidential phrases with a strangely contemporary 5. The President "shall ... nominate and, by and with the advice and consent of the selections. accent, the Senate was preparing for Senate, shall appoint . . . Judges of the the first time to vote down a Supreme Supreme Court". 6. 3 Op. ATT'Y GEN. 188 (1837). "Advice and Consent" Is Court nomination. 7. 1 KENT, COMMENTARIES 310 (1826) ; 2 an Essential Middle Step Clement Hayns- STORY, COMMENTARIES § 1539 (1833). -like 8. T E FEDERALIST No. 66, at 449-450 The views of both Kent and Story worth, a South Carolinian-was in (Cooke ed. 1961) (Hamilton). were that "advice and consent" made 1789 's second ap- 9. 1 WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 137 (1922). the Senate's action an essential func- pointment to the Supreme Court. He 10. Id. at 127.

534 American Bar Association Journal "Advice and Consent" awkward situation into which he had alist, stunned the administration fol- gotten himself two years earlier, when lowers in the Senate. he had proposed New Jersey's William As if to compound the charges of his Paterson for an Associate Justiceship. "insensitivity", Rutledge proceeded to Paterson's name was submitted on Feb- amid the furor over his ruary 27, 1793, while he was still a speech, took the oath as Chief Justice member of the . and formally opened the August, 1795, He had been elected to the First Con- term of the Court. Although there were gress in 1789 and had participated in only a couple of cases on the docket, a the legislation creating the Supreme whispering campaign of vilification Court and fixing the number of Jus- was in full progress, suggesting that tices. only a demented man would have acted Thus, under the terms of Article I, as Rutledge had in recent months and Section 6, of the Constitution" Pater- adding dark hints that he ought to son was ineligible to receive the ap- answer for vaguely described financial pointment while his current term in the imbroglios as well. It was enough to Senate was running. The President had set the stage for a swift and stern Fed- Thomas L. WilltIom Photo to mark time. Paterson fell into the eralist retribution when Congress opened in December of that year. William F. Swindler is professor of second class of Senators in the begin- law at the College of William and ning of Congress, whose terms expired The lineup on the Rutledge vote is of Mary. A graduate of the University of at the end of four years. A week later, some interest. Of the thirty-two sena- Missouri (Ph. D.) and the University on March 4, 1793, Washington resub- tors in 1795, nineteen were Federalists of Nebraska (LL.B.), he is a member mitted Paterson's name and the Senate and thirteen Anti-Federalists, or Demo- of the Nebraska, District of Columbia confirmed the same day. cratic Republicans. On the vote, twen- and Bars. He is the author ty-four senators were counted; the re- of Court and Constitution in the 20th Rutledge Condemns Treaty maining eight adopted the not uncom- Century, the first volume (The Old and Is Condemned mon tactic of being conveniently ab- Legality, 1889-1932) published in 1969 and the second (The New Le- The Paterson problem was a techni- sent on the occasion, all of them being gality, 1932-1968) appearing this sum- administration party men who pre- cality that was readily remedied; the mer. Rutledge matter was something else. It ferred not to be on record as opposing appeared that, after receiving Wash- their own President's nomination. Of ington's advice of his nomination and the ten who voted for confirmation, sonian to counterbalance Marshall on perhaps after receiving his commission only three were Federalists; of the nine- the bench-and the Jeffersonian ma- from the Secretary of State, Rutledge teen who voted to reject, only one was jority in the Senate had acquiesced. had delivered himself of a vehement an Anti-Federalist and thirteen were But the President's alternative nomina- 12 speech condemning the treaty just Federalists. tion, Alexander Wolcott of Connecti- signed between Great Britain and the In 1811, when Jefferson was rejoic- cut, "excited the astonishment of even United States. Jay's Treaty, making ing at the prospect of getting a Demo- Democrats", as one of them confessed. some concessions to Great Britain as a cratic-Republican majority on the The fervor of Wolcott's partisanship- means of relieving the mounting pres- bench as a consequence of Cushing's he was the political boss of his state- sure of animosities between the two na- death, President en- appeared to be the strongest qualifica- tions, outraged many Americans when countered his own difficulties with the tion he could offer. Levi Lincoln him- its contents became known. Anti-Feder- Senate and its prerogative to "advise self rather lamely wrote that whatever alists, who were beginning to call and consent". The assumption was that might be Wolcott's professional record themselves, somewhat self-consciously, a choice would be made from Cush- to date, he believed that "an indus- by the radical label of Democratic Re- ing's old circuit, which lay in strongly trious application to professional stud- publicans, denounced the treaty as an Federalist New England; to select an ies and official duties" might soon put affront to the French, their onetime Anti-Federalist from that area would the new nominee "on a level at least" ally in the struggle for independence. require a good deal of political adroit- with his associates. But even a Jeffer- Federalists, while not generally enthu- ness. sonian Senate could not swallow so me- siastic about the treaty, tended to close Levi Lincoln of , Jef- ferson's Attorney General ranks and regard any criticism as a be- from 1801 to 1t. "No Senator or Representative shall, trayal of loyalty to the administration. 1804, first was nominated by Madison during the time for which he was elected, be appointed to any civiloffice under the In this atmosphere, a speech by a man and confirmed by the Senate, but he de- authority of the United States, which shall just advanced to the nation's highest clined the position because of his fail- have been created, or the emoluments judicial post by the administration, whereof shall have been increased during ing health. Madison's objective had such time ...." and himself at least nominally a Feder- been clear-to find a vigorous Jeffer- 12. S. ExEc. Joua., December 15, 1795.

June, 1970 * Volume 56 535 "'Advice and Consent" Supreme Court Nominations Rejected or Refused In the following tabulation, details on the nominations to the of such action is shown by major parties only: F.-Federalist; Supreme Court of the United States which were declined by A.-F,-Anti-Federalist; D. R.-Democratic Republican; N. R.- the nominees or acted on adversely by the Senate have been National Republican; W.-Whig; D.-Democratic; R.-Republi- summarized. The political composition of the Senate at the time can. President and Senate Date of Action on Nature of Supreme Court Nominee Composition Nomination Nomination Action George Washington Robert H. Harrison F. 17; A.-F. 9 Sept. 24, 1789 Sept. 26, 1789 confirmed; declined ' F. 17; A.-F. 13 Feb. 27, 1793 Feb. 28, 1793 withdrawn John Rutledge, C.J.2 F. 19; A,-F. 13 July 1, 1795 Dec. 15, 1795 rejected, 10-14 Nov. 5, 1795 William Cushing, C.J. F. 19; A.-F. 13 Jan. 26, 1796 Jan. 27, 1796 confirmed; declined John Jay, C.J. F. 19; D.R. 13 Dec. 18, 1800 Dec. 19, 1800 confirmed; declined James Madison Levi Lincoln D R. 28; F. 6 Jan. 2, 1811 Jan. 13, 1811 confirmed; declined Alexander Wolcott D.R. 28; F. 6 Feb. 4, 1811 Feb. 13, 1811 rejected, 9-24 John Q. Adams D.R. 28; F. 6 Feb. 21, 1811 Feb. 22, 1811 confirmed; declined John Q. Adams John J. Crittenden D.R. 28; N.R. 20 Dec. 17, 1828 Feb. 12, 1829 "postponed" "postponed", Roger B. Taney3 D. 20; W. 20 Jan. 15, 1835 March 3, 1835 24-21 William Smith D. 30; W. 18 March 3, 1837 March 8, 1837 confirmed; declined John Tyler John C. Spencer W. 28; D. 25 Jan. 9, 1844 Jan. 31, 1844 rejected, 21-26 "postponed" Reuben H. Walworth W. 28; D. 25 March 13, 1844 Jan. 15, 1845 Jan. 27, 1845 withdrawn Edward King W. 28; D. 25 June 5, 1844 Jan. 15, 1845 "postponed" Dec. 4, 1844 Feb. 7,1845 withdrawn John M. Read W. 28; D. 25 Feb. 7, 1845 no action James K. Polk George W. Woodward D. 31; W. 25 Dec. 23, 1845 Jan. 22, 1846 rejected, 20-29 Edward A. Bradford D. 35; W. 24 Aug. 16, 1852 no action "postponed" George E. Badger D. 35; W. 24 Jan. 10, 1853 Feb. 11, 1853 William C. Micou D. 35; W. 24 Feb. 24, 1853 no action Jeremiah S. Black D. 36; R. 26 Feb. 5,1861 Feb. 21, 1861 rejected, 25-26 R. 36; D. 26 April 16, 1866 no action Ulysses S. Grant Ebenezer R. Hoar R. 56; D. 11 Dec. 15, 1869 Feb. 3,1870 rejected, 46-11 Edwin M. Stanton R. 56; D. 11 Dec. 20, 1869 Dec. 20, 1869 confirmed (d. Dec. 24, 1869) George H. Williams, C.J. R. 49; D. 19 Dec. 1. 1873 Jan. 8, 1874 withdrawn , C.J. R. 49; D. 19 Jan. 10, 1874 Jan. 13, 1874 withdrawn Rutherford B. Hayes Stanley Matthews4 D. 42; R. 33 Jan. 26, 1881 no action Chester A. Arthur Roscoe Conkling R. 37; D. 37 Feb. 24, 1882 March 2, 1882 confirmed; declined Grover Cleveland William B. Hornblower D. 44; R. 38 Sept. 17, 1893 Jan. 15, 1894 rejected, 24-30 Wheeler H. Peckham D. 44; R. 38 Jan. 22, 1893 Feb. 16, 1894 rejected, 32-41 John J. Parker R. 56; D. 39 March 21, 1930 May 5, 1930 rejected, 39-41 Lyndon B.Johnson Fortas, C.J. D. 64; R. 36 June 27, 1968 Oct. 7, 1968 withdrawn 5 Homer Thornberry D. 64; R. 36 June 27, 1968 Oct. 7, 1968 withdrawn Richard M. Nixon Clement F. Haynsworth, Jr. D. 58; R. 42 Sept. 4, 1969 Nov. 21, 1969 rejected, 45-55 G. Harrold Carswell D. 58; R. 42 Jan. 19. 1970 Aeril 7. 1970 rejected. 45-51 Paterson's name was inadvertantly submitted before his term as Senator had expired, he having been a member of the Senate which created the Court positions under the , 1 Stat. 73. 2 Rutledge was commissioned, sworn in and presided over the August, 1795, Term of the Court. . The Senate rejected the nomination as an attempt to control the Court through Taney's Cabinet affiliation. In the 1836 election, with six additional states voting, the Democrats won control of the Senate. Taney was renominated, this time for Chief Justice, and was confirmed, 29-15. 4 The nomination, caught between Democratic control of the Senate and Senator Conkling's fight with Hayes, was pigeonholed. In the new Senate, Democrats and Republicans were evenly divided. Garfield promptly resubmitted Matthew's name, and he was confirmed, 24-23. 5 The Senate never reached this nomination, as it was tied to the effort to advance Fortas to Chief Justice.

536 American Bar Association Journal "Advice and Consent" diocre a nominee, and lie was voted dents have been frustrated in efforts to within a month lost the fruits of vic- down, 9 to 24.13 place their candidates on the Court on tory. The elderly Harrison contracted Madison, having been rebuffed by the eve of their own departure from of- pneumonia on the day of his inaugural too patent a political choice, then hit fice. Jackson himself-although appar- and died on April 4. For the first time upon a candidate popular with every- ently with Martin Van Buren's acquies- in national history a Vice President one--, at the mo- cence-on March 3, 1837, nominated moved into the White House. At once, ment minister to Russia. Although con- William Smith of , Tyler made it clear that he expected to firmed, Adams also declined the posi- along with of , restore government to the low-keyed tion, confessing that he felt out of for two vacancies on the bench. Both style it had enjoyed under the Demo- touch with the law and in any case was men were confirmed, but Smith de- cratic Republicans of the Jeffersonian more interested in active politics. More clined with what a Court historian age. Feeling betrayed, the Whigs in or less by default, the position finally calls "a public statement of refreshing Congress promptly repudiated the ad- went to a New Englander who seemed frankness". Smith, a onetime United ministration and rallied around their at the time to be decidedly of second- States Senator, confessed that he pre- old leader, , a longtime level ability and little promise of intel- ferred the active political life or at Tyler foe. That fall, all but one of the lectual perception in matters of consti- least freedom to discuss political issues President's Cabinet resigned over a bit- tutional law. His name was Joseph from public platforms, and be added terly disputed banking bill. In 1842 the Story. that while he "believed that a judge Whigs lost control of the House of was not bound by any moral principle Representatives. With the Clay forces Outgoing Presidents Have to abstain from political discussions", in control of the Senate and the Demo- Trouble Making Nominations he felt that there were "the strongest crats in the majority in the House, John Quincy Adams, as President, prudential motives to do so". This was Tyler became a President without a had troubles of his own with an at- because, he said, such a jurist "might, party. tempted Supreme Court appointment with perfect innocence, in discussing a in December, 1828. Andrew Jackson political subject elsewhere, express an Tyler Fails to Nominate had won the Presidential election that opinion which might afterwards cross in Five Attempts fall, and the Democrat-dominated Sen- his judicial path whilst on the Bench, It was against this chaotic back- ate insisted that the choice to fill the place him in a delicate situation, and ground that Tyler's half dozen Su- existing vacancy should be left to the in the public estimation cast a blot preme Court nominations were at- incoming executive. This argument, upon the sacred ermine". 16 tempted. In December of 1843 Justice made as recently as in the nomination By the mid-1840s, American politics died, and the follow- of Justice Fortas for the Chief Justice- was in another of the stages of disinte- ing month Tyler sent to the Senate the ship in the summer of 1968, was to be- gration that had prevented the coalesc- name of John C. Spencer of New York come a familiar one throughout the ing of a two-party system since the to fill the vacancy. Spencer was a nineteenth century. Politically inspired opening of the century. The Presidential widely known attorney, but his name charges and countercharges rang campaign of 1840, in fact, had been an was anathema to the Clay Whigs. Once through press and Congress. Adams, exercise in irrationality. The Whigs, be had been a leader of an anti-Clay on the urging of Henry Clay, nomi- themselves a coalition of the remnants faction in the party, and the anti-Tyler nated John J. Crittenden, an outspoken of earlier factions rather than an or- forces in the Senate poured an ava- Whig and former Senator from Ken- ganized party, sought a candidate who, lanche of invective on him. Because he tucky. The Senate, dominated by Jack- because he had the fewest known polit- once had opposed Tyler but then had son men, loudly decried the attempt of ical principles, would displease the accepted appointments to both the War the Clay forces to place "one of his and Treasury Departments in the Tyler 14 fewest number of voters. They found men on the Supreme Bench for life". their man in Cabinet, Spencer also was denounced Although the Crittenden nomination of Ohio and filled out the ticket with as an opportunist and a turncoat. His had been sent to the Senate on Decem- John Tyler of Virginia, a vigorous confirmation, declared Clay's lieuten- ber 18, it was not until February 12 of states' rights spokesman who stood for ant, Senator Crittenden, "would have the following year that the Judiciary been a plain violation of all public po- most things the Whig leaders were 17 Committee reported to the Senate floor against. The incongruity of the situa- litical morality". a resolution that "it is not expedient to tion was glossed over by deliberately Even so, Spencer's nomination was act upon the nomination . . . during avoiding the adoption of any platform, rejected by a narrow margin-21 to 15 the present session of Congress". launching an all-out campaign of abuse 26. It was the closest to success of five Within a few weeks, Andrew Jackson against the Democrat, Van Buren, and would take the oath of office as Presi- evading a discussion of the issues by 13. S. ExEc. JOUR., February 13, 1811. dent, and the issue would be dead with- resort to the campaign song of Tippe- 14. 1 WARREN, supra note 9, at 702-704. out the formality of a Senate rejection. canoe and Tyler Too. 15. 5 CONG. DEB. 81 (1829). 16. 2 WARREN, supra note 9, at 41. Like Adams, other outgoing Presi- The Whigs won the election, but 17. Id. at 111.

June, 1970 * Volume 56 537 "Advice and Consent" different nominations Tyler sent to the ously competent (and nonpolitical) their final disintegration. The Capitol. The President appears to have that the Senate at last co-operated and issue was mounting in intensity toward sought earnestly for able candidates, confirmed him. It was to be Tyler's its final crisis, and the occupant of the but he was caught in an impossible sit- only success in six tries. His other White House was once more without uation, lacking even a minority admin- nominee, John M. Read of Philadel- an administration bloc in the Senate. istration group in the Senate to orga- phia, a former United States district nize possible support for any of his attorney, appeared to have no political Slavery Issue Leads to nominations. His second nominee was, opposition, but neither did he have any Split of Whig Party in professional prestige, even more strong political support. The old Con- Fillmore had come to the Presidency highly qualified than Spencer-but, gress adjourned without taking any ac- by the accident of 's unhappily, he also was more highly tion on him. death halfway through his term. He vulnerable to political retribution. He took office in the midst of the bitter was Reuben H. Walworth, chancellor of Justice's Seat Vacant Senate struggle that produced the Com- New York state, whom , for Eighteen Months promise of 1850, a series of legislative New York political boss, promptly dis- Justice Baldwin's seat continued un- enactments that sought to appease both missed as "querulous, disagreeable, occupied well into the administration the extreme slavery and antislavery [and] unpopular". of President Polk. By the time Con- factions in Congress. The most signifi- It was a signal for the Clay Whigs in gress convened in December of 1845, cant result of this wrangle was the split the Senate to revive their planned cam- the position had been vacant for eight- of the Whigs into factions led by Sena- paign of denigration; and now, as if to een months. Polk, like Tyler, felt ob- tor William H. Seward of New York, compound Tyler's troubles, a second liged to find a candidate from Pennsyl- who opposed the compromise, and vacancy opened on the Court with the vania, but now he was caught in a President Fillmore, who supported it. death of Justice in the cross-current of state political rivalries. Thus, when McKinley died two spring of 1844. With Presidential nom- Polk's first thought was to nominate years later, there was every political inating conventions and election cam- his Secretary of State, James Bucha- reason why the Senate should not be paigns in the offing, the Whigs and nan, but the future President vacillated enthusiastic about a Fillmore judicial Democrats alike, each confident of vic- continually. Like many another appointment. The Whigs' split meant tory and in any case confident of get- in politics, Buchanan was torn between that the President would not be able to ting rid of the President, acquiesced in a professional desire for the high judi- win nomination for a second term. The a postponement of action on the nomi- cial office and an unsatisfied appetite Democrats in the Senate, who held a nations. "Better the Bench shall be va- for equally high political office. fair majority, were confident that the cant for a year, than filled for half a In Buchanan's place, after receiving coming elections would add to their century by . . . partisans committed in much contradictory advice, Polk control and insure confirmation of a advance to particular beliefs", said the finally nominated George W. Wood- jurist of their own preference recom- National Intelligencer.1s ward, a judge of a minor state court in mended by a President of their own The Tyler nominations of Walworth . Unfortunately, the Presi- party. Accordingly, when Fillmore sent and Judge Edward King of Philadel- dent had failed to clear the nomination up the name of Edward A. Bradford, a phia were tabled by the Senate on June with the two Pennsylvania Senators, well-known Louisiana lawyer, on Au- 15, 1844, and the parties turned their and one of them, , gust 16, the Senate took no action at attention to the Presidential cam- found Woodward's candidacy "obnox- all on the nomination and wound up its 20 paigns. The election of Democratic ious". Following the already estab- business shortly thereafter. James K. Polk rang down the final cur- lished Senatorial custom of deferring The November, 1852, elections justi- tain on Henry Clay's persistent efforts to such a plea by one of its colleagues, fied all Democratic expectations. The to get into the White House. It also left the Democratic majority rejected the Whigs collapsed and soon passed into the Whigs in the Senate with a choice nomination, 20 to 29.19 history, the Presidency went to Frank- between confirming the Court nomina- The old issue of a retiring President lin Pierce, and the Democratic major- tions of a Whig President, even one and a hostile Senate plagued the last ity in the Senate rose to thirty-eight they had repudiated, or leaving both year of Millard Fillmore's administra- from twenty-two. With this handwriting positions to be filled by the Democrats, tion and resulted in three more frus- on the wall, it was virtually a foregone who would control the new Congress. trated nominations for the Supreme conclusion that Congress would give In an attempt at conciliation, Tyler Court. In the summer of 1852 the little consideration to any more Fill- early in 1845 withdrew the Walworth long-ailing Justice John McKinley had more appointees. Nor were the men he and King nominations-after a vain died. It was most inopportune, for the proposed able to offset their own politi- second effort to get King's name ap- Whigs in the Senate, who might have proved-and substituted two other been expected to unite on one of their nominees. One--Chief Justice Samuel own party to replace the late Demo- 18. Quoted in id., at 117. 19. S. ExEc. JoUR., January 22, 1846. Nelson of New York-was so conspicu- cratic incumbent, were on the verge of 20. S. EXEC. Jout., February 11, 1853.

538 American Bar Association Journa-l "Advice and Consent" cal defects in Democratic eyes. The the civil governments Johnson had re- mental statement of constitutional first, Senator George E. Badger of established in the Southern states, rights were shouted down by Radicals , was a nationalist Whig planning in their place a rigid military everywhere. President Johnson added who struck horror in the hearts of the control under which restructuring of fuel to the flames by promptly ap- states' rights leaders of the majority the conquered territory would be ef- plying the principle in Milligan to all party. On February 11, 1853, after a fected before readmission to the cases in the South where civilians were month of desultory debate, the Senate Union, Congress had serious doubts as awaiting trial by military tribunals. voted, 26 to 25, to "postpone" any ac- to the Court's reliability in any test of More incendiary matter was provided tion on the Supreme Court vacancy the constitutionality of its program. in a report that the Court would soon until after March 4. There was also the matter of the trial hear argument challenging the consti- Fillmore, still pursuing a forlorn being conducted by a military commis- tutionality of military government in hope, then submitted the name of Wil- sion in the District of Columbia of the the seceded states in general. liam C. Micou of Louisiana, a law persons accused of the assassination of partner of Judah P. Benjamin. But by President Lincoln. How would the Number of Justices now it was clear that for this Senate Court rule if petitions for habeas cor- Reduced to Seven "advice and consent" was a simple pus were sought by these defendants? In this inflamed state of public af- matter of party lining. Micou's candi- It was rather clear that Chief Justice fairs, both Johnson's chance of making dacy expired on March 4 without Sen- Salmon P. Chase was not prepared to a judicial appointment and the compo- ate action, and the incoming President yield an iota of the Court's constitu- sition of the Court itself became the Pierce, within three weeks of taking of- tional independence; he already had victims of Radical vindictiveness. fice, sent up his own nominee, John refused to permit any of the Justices to Without acting on the Catron replace- Archibald Campbell of Alabama, who sit on circuits in any of the Southern ment-Attorney General Henry Stan- was promptly confirmed. states thereby, among other things, bery-the Senate turned its attention The story was repeated at the end of preventing the trial of to a bill sponsored by Buchanan's administration in February, for ) until there was an express of Illinois, providing that no more ap- 1861. Justice Peter V. Daniel had died executive order affirming that the judi- pointments to the Court should be the previous June, and in November ciary was not subject to the military made until the number of Justices had won in a four- authorities therein. had been reduced to seven. party campaign for the Presidency. During Lincoln's administration the The crass political motivation of the Now, in February, Southern Senators Court had been increased to ten Jus- Judiciary Act of 186622 was unmistak- were almost daily resigning to follow tices, and in May of 1865-one month able; indeed, a spokesman in the their seceding states, and the majority after the assassination-a vacancy was House of Representatives confessed un- held by the new Republican Party was created by the death of Justice Catron. ashamedly that "this bill abolishes the growing by default. Under these cir- Harassed from the outset of his admin- Judge whose appointment the Presi- cumstances, Buchanan's attempt at fill- istration, Johnson neglected to send up dent sent to the Senate" and that this ing the Court vacancy was almost ludi- a nomination to replace Catron until was its primary purpose. The Radicals crous-he nominated his own Secre- the following April 16. The timing was planned to bring the Court, as well as tary of State, Jeremiah S. Black. Al- doubly unfortunate; not only had the the White House, under their control, though a competent enough lawyer, it President missed the opportunity to and when the unhappy Johnson ended was fantasy to think that the Senate at challenge the Radical Republican op- his term, they gave notice that his suc- this time would accept the chief Cabi- position before it had attained its cessor, Ulysses S. Grant, would fare lit- net officer of a discredited and defeated strength, but now the nomination came tle better, although be was, in their administration. 's New on the heels of the renowned decision view, one of their own. York Tribune called the act "a flight of in Ex pOrte Milligan, 4 Wall. 2 In 1869 the number of Justices was 23 insolence", and the Senate rejected it (1866), a case that appeared to fore- changed back to nine. Grant, assum- within two weeks, although by a nar- cast a judicial nullification of the Radi- ing that he was free to choose a candi- row vote, 25 to 26.21 cals' whole plan of Reconstruction. In date of his own preference, eventually that case the Court held unequivocally submitted the name of his Attorney Sees that civilians could not be tried by mil- General, then Ebenezer R. Hoar, and Height of Political Color itary courts when, as in the Southern immediately the worst elements of the The height, or depth, of political col- District of Indiana where Milligan was Senate Radicals, who proved to be a oration of judicial appointments was tried, civil courts were open. substantial majority, formed a coali- to be reached in the Reconstruction Milligan rocked a nation still in Era. Not only the President, Andrew deel shock from four years of Civil 21. S. ExEc. JOUR., February 16, 1861. Johnson, but the Court itself had by War and the murder of its President. 22. Act of July 23, 1866, ch. 110, 14 Stat. then become the target of vehement The substantial number of spokesmen 209. 23. Act of April 10, 1869, ch. 22, 16 Stat. Senate hatred. Intent upon destroying who praised the opinion as a funda- 44.

June, 1970 e Volume 56 539 "Advice and Consent" tion against him. Some argued that the taste and status of that action, as well died. Six months later Grant bestirred new chair should go to a nominee from as the question of what the Court himself on the matter of a replacement. the "reconstructed" South; others might have become with the addition Apparently he was intent on finding a made no effort to conceal the fact that of a rancorous and domineering politi- political crony to place in the position, they found Hoar objectionable because cian, were never to be determined. for he approached three of his closest he had favored a stronger civil service Four days after the confirmation, Stan- advisers in succession to offer them the system; and the die-hards hated him ton died. post. The first, Senator Roscoe Conk- for having opposed the proceedings to On February 7, 1870-four days ling of New York, declined. Grant then impeach Johnson. Eventually, Hoar after Hoar's rejection-the Court sent up the name of his current Attor- 3 24 was rejected by a 24-to-3 vote. handed down a five-to-three opinion in ney General, George H. Williams of the first Legal Tender Case (Hepburn Oregon. It was, in the view of many Congress Demands v. Griswold), 8 Wall. 603 (1870), public and professional spokesmen, the Nomination of Stanton holding the wartime greenback law, as worst selection since Madison's choice Even clearer evidence of the Radi- it applied to prior contracts stipulating of Alexander Wolcott sixty years be- cals' arrogance developed when, soon specie payment, to be unconstitutional. fore. after Hoar's nomination, another va- On the same day Grant sent two new A party wheelhorse who had voted cancy developed with the retirement of names to the Senate for the vacancies "guilty" at Andrew Johnson's trial, Justice Robert C. Grier, which was on the bench-William Strong of Williams consistently showed up to dated to take effect February 1, 1870. Pennsylvania and Joseph P. Bradley of handle some of the Radicals' most nox- A substantial majority of the members New Jersey. Almost from that date ious assignments. In 1876 he would be of both Houses of Congress drew up a there developed the story that the nom- one of a special task force sent to Flor- petition and sent it to Grant, demand- inations were intended to "pack" the ida by the Republican National Com- ing the appointment of the former Sec- Court and provide two more votes for mittee "to save the state for Hayes"-a retary of War, Edwin M. Stanton. An the Hepburn minority of three, since job he was able to carry off. Now, al- arrogant opportunist who as a Cabinet Grier, one of the original majority, though the public outcry did not deter member had intrigued with the Radi- now had retired. From the circum- the Senate Judiciary Committee from cals against Johnson and who brazenly stances of the nominations, it seems first reporting out Williams's nomina- refused to resign when at last the har- unlikely that the administration had tion favorably, its report was called assed President dismissed him, Stanton given this possibility any thought. On back when it received subsequent evi- was the very prototype of the men the the other hand, it was well known both dence that the Attorney General had Radicals wanted to see on the Court. In in the White House and on Capitol Hill removed a United States district attor- 1867 he had had the effrontry to dic- that both men favored the argument ney in Portland to halt the investiga- tate a section of the Military Appropri- that the greenback statute was valid. tion of Oregon voting frauds that pur- ation Act of 1867 requiring that the Strong was confirmed on February portedly implicated Williams's col- President issue all military orders 18, but Bradley's nomination was held league, Senator John H. Mitchell. through the Secretary of War and that up until March 21, when it was ap- When, on the heels of this disclosure, any other military commands of the proved, 46 to 9. Neither man had strong the New York Bar Association for- Commander in Chief should be null. political persuasions that enabled Rad- mally condemned the nomination, From February, to May, 1868, when icals in the Senate to focus opposition Grant reluctantly withdrew Williams's Johnson's impeachment failed, Stanton against him, although neither was con- name. had barricaded his office and refused sidered to be a Radical sympathizer. to permit access to War Department In any event, since the majority of the Cushing's Name Withdrawn records. Only when the prospect of financial community and their men in on Charge of Disloyalty ousting the President vanished did Congress were hoping for a rehearing Two days later, on January 10, Stanton grudgingly give up his resist- of the legal tender issue before a full 1874, the President sent up another se- ance. Court, the choices seemed to be vindi- lection-Caleb Cushing of Massachu- Grant, hoping to appease the Radi- cated when, on March 25, Attorney setts. An even more bizarre fate was in cals and preserve Hoar's candidacy, General Hoar moved the Court to hear store for this candidacy. While much yielded to the pressure and formally argument on two new legal tender was made of Cushing's political insta- nominated Stanton for Grier's position cases, and the Court granted the mo- bility-he had been over the past on December 20, 1869. The nomina- tion on April 1. When, a year later, a twenty years a Clay Whig, then a Tyler tion was confirmed the same day it was five-to-four majority reversed Hep- man, a Democrat, then a confidante of received by the Senate. The legality of burn, with Strong and Bradley joining Andrew Johnson and finally a regular nominating, not to mention confirm- the majority opinion, the presumed ing, a candidate for a position that "packing" appeared to have served its 5 would not be vacant for another six 2 24. S. ExEc. JOUR., February 3, 1870. purpose. 25. Knox v. Lee and Parker v. Davis, 12 weeks was not debated. The dubious In May of 1873 Chief Justice Chase Wall. 457 (1871).

540 American Bar Association Journal "Advice and Consent"

Republican-none of these charges successor a test of party strength and York Senators found obnoxious, espe- seemed likely to weigh heavily against discipline. cially when coupled with their antipa- his nomination. But then, fortuitously, The issue was made unmistakably thy for Cleveland. Wheeler also was re- someone turned up from some old Con- clear in the selection of the nominee, jected. federate documents a letter that Cush- Roscoe Conkling himself, who had just Having twice been repulsed by his ing had written in 1861 to Jefferson lost his control over the New York Re- New York adversaries in the Senate, Davis as President of the Confederacy. publican machine and had retired from Cleveland concluded that he would While the letter was wholly nonpoliti- the Senate. On March 2, 1882, the final have to turn to a nominee from some cal, it was a made-to-order excuse for a vote on Conkling's candidacy was other state. At the same time, he had suggestion of disloyalty. Three days taken and carried by a margin of 39 to reason to assume that the Hill faction after he had submitted Cushing's 21. Having accomplished his purpose, would continue to oppose him effec- name, the President in considerable Arthur was not particularly surprised tively unless he could turn its own tac- embarrassment was compelled to with- or disappointed when Conkling for- tics against it. This led to his third and draw it. mally declined the appointment. final choice, a member of the very Sen. Struggles between the White House ate in which "collegial courtesy" and the Senate were to aggravate the Control of New York Machine played such a fundamental role. Ed- process of judicial nomination and Essential to Both Parties ward Douglass White of Louisiana had confirmation on three more occasions Control of the party machinery in many political attributes in his favor in the '80s and '90s. The first of these New York was as fundamental to Dem- -he was a Confederate veteran, a revolved about Chester A. Arthur- ocratic as to Republican administra- Roman Catholic and a Democrat; he like Tyler and Fillmore in earlier eras, tions, and this led to the final two re- would be a popular selection for the an accidental successor to the chief ex- jections of Supreme Court nominations Southern wing of the party, which had ecutive's position by the fact of a Presi- in the nineteenth century as casualties enjoyed only a short-lived accommoda- dential death. In the last months of in the power struggle between Grover tion in the prior selection of Lucius Q. Rutherford B. Hayes's administration, Cleveland and Senator David B. Hill of C. Lamar of Mississippi in 1888, Roscoe Conkling and the White House New York. In effect, Hill fought Lamar having died within five years of had engaged in a violent dispute over against the first nomination because ascending the bench. As a freshman Hayes's proposal to extend the United the nominee had ruled against one of Senator, White would hardly be op- States Civil Service to a number of Hill's henchmen, but both Hill and posed by the New York Democrats, es- government positions in New York. Senator Edward Murphy opposed the pecially with the Southern members of Conkling regarded this as an attempt second nominee because he was too in- the party expected to unite behind him. to undermine his political machine in dependent of the party in any event. Cleveland's strategy paid off, and the that state, and he fought the plan. In July, 1893, Justice Samuel Blatch- final nineteenth century struggle over Hayes retaliated by removing one of ford died, and that fall Cleveland sent the politics of "advice and consent" Conkling's lieutenants-Arthur-from up the name of William Hornblower to was settled quickly. the lucrative post of Collector of Cus- be his successor. Hornblower was a toms of the Post of New York. The re- circumspect New York lawyer, but as Twentieth Century History sult of this vendetta was to split the an election commissioner he had ruled Lists Fewer Rejections Republican Party into two warring fac- against one of Hill's men, and the Sen- The nineteenth century witnessed at tions on the eve of the Presidential ator found this sufficient reason to in- least one Senate rejection of a Supreme campaign of 1880. voke the hoary rule of "Senatorial Court nominee in nine of its ten dec- In what they considered a masterful courtesy" by pronouncing the nominee ades. While the twentieth century had compromise-but reminiscent of the obnoxious to him. Being rebuffed in only five instances in its first seventy action of the Whigs of 1840-the Re- this attempt, Cleveland then selected a years, this is not to suggest that poli- publican Party managers selected a man even more highly regarded in tics has become an inert ingredient in Hayes man, James A. Garfield, as the New York-Wheeler H. Peckham, the matter of judicial selection. The nominee for President, and balanced whose brother, Rufus, would in fact be prolonged and obfuscating debate on him with Arthur himself as nominee confirmed for the Court the following the nomination of Louis D. Brandeis for Vice President. Thus, when Gar- year. Peckham had made his popular in 1916, with a 47-to-22 vote on con- field was assassinated, Arthur found reputation by serving as special coun- firmation being qualified by the ab- himself in a position uncomfortably sel in the prosecution of Boss Tweed in stention of twenty-seven other Sena- similar to Tyler's in 1842 and Fill- 1863, and his professional eminence tors, is perhaps the most blatant in- contentiousness. 26 more's in 1850, with his party support was exemplified in his role as a stance of ideological in Congress largely in doubt. It was at founder of The Association of the Bar Chief Justice 's this juncture that Justice of the City of New York. But with this resigned from the Court, and Arthur high professional competence went a 26. TODD, JUSTICE ON TRIAL (1964) determined to make the choice of his political independence that both New MASON, BRANDEIS chs. 30 and 31 (1956).

June, 1970 * Volume 56 541 "Advice and Consent" active lobbying to secure a conserva- nomination to the Senate. Hoover's may be seeking at any given point in tive majority on the Court through the earlier choice of national history may be irrelevant as a confirmation of is now had stirred up some protest votes, but contribution to effective Supreme well documented.2 7 The considerations the impeccable character and profes- Court . The identity of that led to the first New Deal appoint- sional competence of the man made it the particular nominee may be all but ments were highlighted in the great impractical to consider a serious at- lost in the course of the debate on his "court-packing" struggle of 1937.28 tempt to reject him. With Parker, char- confirmation, which may be directed at And President Richard M. Nixon has acter and competence were not in the personality or policies of the Presi- been candid in declaring that he intends issue; his vulnerability lay in a record dent or the Court. Even when Senate to seek appointees who will tend to that his critics-who were more di- inquiry focuses on the nominee's quali- dampen down the volatility developed rectly concerned with criticism of the fications, moreover, they are evaluated on the Court during the 's jurisprudence-could magnify subjectively in terms of each individual 2 9 years. as antilabor and anti-Negro. That con- Senator's concept of the constitutional The rejection of Judge John J. siderations such as these were the function of the Court. Parker in 1930 was somewhat distin- touchstones of midtwentieth century When the President selects ade- guishable from typical nineteenth cen- economic orthodoxy was demonstrated quately qualified men as his nominees, tury Senate rejections in that the Sen. nearly four decades later when Judge the political considerations that are a ate, which for most of the past decade Haynsworth was confronted with simi- part of the selection and Senate confir- 31 had been frustrated by the adamant lar criticisms. mation or rejection are not likely to commitment of the Court's majority to have an adverse effect on the appoin- a laissez-/aire philosophy, was taking What Should the Senate's tee's performance. Good jurists who this means of expressing its dissatisfac- Role Be in Judicial Selection? are rejected for political reasons are, tion with the course of constitutional If the politics of "advice and con- of course, a loss to the nation; the real doctrine. After the flurry of appoint- sent" tends to shock a pristine sense of injury, however, arises when a Stanton ments to the Court following Taft's innocence, it nevertheless serves to em- is foisted upon the country with little accession as Chief Justice-George phasize that the American ideal of to recommend him except that he is the Sutherland, Pierce Butler and Edward check-and-balance government is im- front man for a claque. T. Sanford within five months of each plemented in the realities of human To estimate how many "good" and other-almost a decade had passed in passions and prejudices. What, in the "bad" candidates have been either con- which Harlan F. Stone was the only final analysis, is the role of Congress, firmed or rejected in the process of additional appointee. In the course of and particularly the Senate, in the "advice and consent" over 180 years is this decade of "normalcy", the re- process of judicial selection? And how beyond the scope of this short review. form-minded minority of Oliver Wen- may it be carried out in practice ex- The point of the present study is to re- dell Holmes, Brandeis and Stone vainly cept by individuals and groups who call that the process of confirmation spoke for the legislative efforts of state have their own view of the qualities or rejection is unavoidably, perennial- and national governments to deal effec- they seek in an appointee? ly-and, perhaps, logically-a part of tively with the corporate economy, ac- Granted, what the Senate majority the American political system. celerating urbanization and changing social issues. 30 Against them were aligned the phalanx of conservatives- 27. MA SO N, WILLIAM HOWARD TART: AUTHOR'S NOTE: Much of the historical Sutherland, Butler, Willis Van Devan- CHIEF JUSTICE ch. 7 (1964) ; DANRLSKI, A material on which this article is based is ter, James McReynolds, Taft and SUPREME COURT JUSTICE Is APPOINTED c1s. taken from the following: WARREN, THE 1-7 (1964). SUPREME COURT IN UNITED STATES HISTORY "Taft's automatic second vote", San- 28. SWINDLER, COURT AND CONSTITUTION (2 volumes, 1922-1926) (the best study of ford. IN THE 20TH CENTURY: THE NEW LEGALITY, the Supreme Court, pending the multivolume 1932-1968 chs. 3-5 (1970). history being sponsored by the Oliver It was not, then, Parker himself so 29. Swindler, The Warren Court: Com- pletion of a Constitutional Revolution, 29 Wendell Holmes Devise of the Library of much as the philosophy of the Court Congress) ; MORISON, OXFORD HISTORY OF VAND. L. REV. 205 (1970). THE AMERICAN PEOPLE (1965) ; NEVINS, majority at which the reformers in 30. SWINDLER, THE OLD LEGALITY, 1889- OR- DEAL OF THE UNION (2 volumes, 1947); Congress directed their attack when 1932 chs. 12-14 (1969). 31. 115 CONG. REC. 10390-10397 (Septem- and the DICTIONARY OF AMERICAN BIOGRA- Herbert Hoover sent that ill-starred ber 4, 1969). PHY (22 volumes, 1928-1937).

542 American Bar Association Journal