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Comings and Goings Tells the More Familiar Story

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Comings and Goings Tells the More Familiar Story Henry J. Abraham. Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton. New and revised edition. Lanham, MD: Rowman & Littlefield Publishers, 1999. xiii + 429 pp. $75.00, cloth, ISBN 978-0-8476-9605-5. David N. Atkinson. Leaving the Bench: Supreme Court Justices at the End. Lawrence: University Press of Kansas, 1999. xiii + 248 pp. $16.95, paper, ISBN 978-0-7006-1058-7. Reviewed by R. B. Bernstein Published on H-Law (October, 2000) Comings and Goings tells the more familiar story. This latest edition of As of this writing, the U.S. Supreme Court has a book that frst appeared in 1974 has become an had the same membership for six years -- the indispensable reference for historians of the longest such period in the Court's history in over a Court, and retains its character as a lively and century. Observers of the Court have noted, based useful examination of Supreme Court appoint‐ on the ages of the older Justices, the likelihood ments and the evolution of the appointments that the next fve years will witness one, two, or process over time. Henry J. Abraham, now James even three vacancies on the Court. The closely-di‐ Hart Professor of Government and Foreign Af‐ vided nature of the Court combines with the ap‐ fairs, Emeritus, at the University of Virginia, has proach of a Presidential election and a national thoroughly revised and overhauled his book, the contest for control of the Senate to give urgency to last edition of which appeared in 1992. His modif‐ issues of the Court's composition. cation of the title is apt and valuable; indeed, Sen‐ ators have played a large, and increasingly impor‐ Two recent books deserve to be read together tant, role in staffing the High Court. At the same as valuable resources for anyone contemplating time, his dropping of the adjective "political" from how Justices come to the Court and how they go. the book's title is unfortunate, as one of the en‐ Of these books, Justices, Presidents, and Senators H-Net Reviews during lessons of Justices, Presidents, and Sena‐ David N. Atkinson (who has written a series tors is the ever-present reality of politics of all of valuable articles scrutinizing Minton's Court ca‐ sorts in the naming of Justices to the High Court. reer), has now presented us with Leaving the With commendable even-handedness and Bench, a book unique in the literature of the good humor, Abraham has recounted the stories Court; this study focuses on the ways in which of the one hundred eight successful nominations Justices have left the Court from the 1790s to the to the Court and the many failed nominations present. Atkinson, Curators' Distinguished Teach‐ (some obscure, some spectacular). Abraham also ing Professor of Political Science at the University includes a photo insert depicting all the Justices of of Missouri^ÂKansas City, is also professor of po‐ the Court from John Jay to Stephen Breyer, as well litical science and law at the School of Law. His as appendixes tabulating the various recent at‐ prose is clear and refreshingly free of jargon. Like tempts to rate both Presidents and Supreme Court Abraham, he arranges his narrative chronologi‐ Justices. In sum, Justices, Presidents, and Senators cally. His frst chapter assesses why Justices leave is a welcome revision of a book that belongs on the Court; his next fve discuss the departures of the shelf of any scholar -- whether historian, polit‐ Justices from the bench; and his last examines ical scientist, or jurist -- who regularly assesses proposals dealing with the problems of Justices the Court and its workings. who ought to step down but refuse to do so. Abraham does, however, slight one issue that Leaving the Bench is weakest in the early has plagues at least one recent President. Al‐ phases of the Court's history. Almost at the outset, though Bill Clinton's appointees to the Court -- Jus‐ Atkinson's paragraph (p. 4) assessing the impeach‐ tices Ruth Bader Ginsburg and Stephen Breyer -- ment and trial of Justice Samuel Chase presents a came with distinguished records as legal aca‐ garbled and severely fawed account of the Chase demics, attorneys, and federal appellate judges, impeachment, in particular the charges on which he expressed on several occasions his regret that Chase was impeached and tried and the reasons he could not name to the Court someone with the that his trial ended in his acquittal. Almost as broad political experience that characterized such problematic, Atkinson's accounts of departures Justices as Earl Warren and Hugo L. Black, Jr. from the Court during the years from 1789 to 1864 Abraham does note the emerging profile to which are scanty and monotonous, perhaps reflecting future nominees to the Court likely will have to the paucity of sources for all but a handful of the conform (pp. 327-330), but he does not address Court's early members. Even with such notable the fading of significant political experience from figures as Joseph Story and Roger B. Taney, we get the list. little sense of the Justices as anything but ailing men in middle or late middle or old age who suc‐ The creation of vacancies on the Court is an cumb to illness, bad medical attention, or bore‐ integral part of the story of appointments to the dom. Court, of course, and Abraham does address such painful episodes as the debility of Justices Robert Atkinson's story picks up as he approaches Grier, Stephen J. Field, and William O. Douglas. the present, and his narrative is enlightening and However, Abraham's book bears out the rueful appalling by turns. It is painful to read his ac‐ comment of retiring Justice Sherman Minton in count of Justice William O. Douglas's last days on 1956 that far more people would be interested in the Court, which were an ordeal for him, for his who would take his place than in the man making colleagues, and for the nation. It is equally painful room. to read his account of Justice Thurgood Marshall's last years on the Court; Atkinson tactfully but 2 H-Net Reviews firmly suggests that Marshall stayed on the bench the faces of their colleagues or their families. In too long and that, in his last years as a Justice, he particular, he notes the possibility that Justices left nearly all of the work to his clerks. Perhaps have not only relied more and more on their law the most painful story of all is that of Charles E. clerks, but that the law clerks have become a Whittaker, who was named to the Court in 1958 shield for those Justices who are no longer up to only to step down four short years later. Atkinson the job. reveals that Whittaker suffered from depression, But the balance of the story he tells -- of a a mental illness that was an arcane mystery to the Court blessed with statutory provisions allowing medical profession in the 1950s, yet one that, Justices to retire on salary and with access to the Atkinson suggests, would have barred Whittaker latest medical advances, and perhaps cursed with from even being nominated to the Court today. increasing and increasingly severe attention from Atkinson's story is almost entirely one of Jus‐ the media and the public -- suggests that no Jus‐ tices responding to the encroachments of age and tice will ever be able to stay on the Court when he illness; occasionally, a Justice left the Court due to or she is manifestly unable to discharge his or her boredom with its work or ambition to succeed in duties and responsibilities. Indeed, at the same the political realm. Atkinson scants another way time that Atkinson worries about future Justices in which Justices might leave the Court but have refusing to go, he also notes that such Justices as never done so -- impeachment. To be sure, only Lewis F. Powell, Harry A. Blackmun, and Byron one Justice, Samuel Chase, actually was im‐ White stepped down when they still were healthy peached and stood trial; however, there were and up to the challenge, and that Justice William J. threats of impeachment against Chief Justice John Brennan, Jr., lost no time after his 1990 stroke in Marshall (who was on the Jeffersonian Republi‐ deciding that it was time for him to go and acting cans' shopping list as the next target after Chase), on that decision. In sum, Leaving the Bench sug‐ and Associate Justices William O. Douglas and Abe gests that there is more reason to hope that Jus‐ Fortas. Indeed, in Fortas's case, the threat of im‐ tices will step down when the time is right than to peachment was enough to induce Fortas to resign fear that they will not. from the Court to spare the nation a constitutional Copyright (c) 2000 by H-Net, all rights re‐ confrontation. Readers might wish, especially in served. This work may be copied for non-profit light of the valuable scholarship on the history of educational use if proper credit is given to the au‐ impeachment, that Atkinson had devoted a few thor and the list. For other permission, please con‐ more pages to assessing the declining significance tact [email protected]. of impeachment as a threat to Justices. Readers will wish that Atkinson had done more to assess how the changing nature of the Court and its place in American life have changed issues of judicial tenure and the quandaries of when a Justice should step down.
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