The Brandeis Model: An Examination of Presidential Relationships with Supreme Court Justices from Washington and Jay to Obama and Garland An Honors Thesis Submitted to the Department of Politics in partial fulfillment of the Honors Program by Joshua I. Luger April 21, 2016 Table of Contents Chapter 1. Introduction 1 I. Theory and Literature Chapter 2. Constitution and Federalist Papers 5 Chapter 3. Going Public 8 Chapter 4 The Politics President’s Make 10 II. Presidents Chapter 5. George Washington 11 Chapter 6. Abraham Lincoln 21 Chapter 7. Lyndon B. Johnson 25 Chapter 8. Richard Nixon 37 III. Justices Chapter 9. William Howard Taft 46 Chapter 10. Charles Evans Hughes 54 Chapter 11. Louis Brandeis 63 Chapter 12. Felix Frankfurter 68 Chapter 13. Earl Warren 73 IV. Conclusion Chapter 14. Final Thoughts 84 Chapter 15. Conclusion 87 Chapter 16. Merrick Garland 96 Bibliography 100 Chapter 1 Introduction The U.S. Supreme Court has reshaped American society and politics.1 This Court which is the least democratic institution in the American Democracy, is widely misunderstood, few people can properly identify all of the justices, let alone explain how they got there.2 Today, the Court is composed of nine justices appointed to their posts by the President with the advice and consent of the Senate.3 After the President makes his selection, the Senate Judiciary Committee holds hearings to determine the qualifications of this person. Once the nominee passes this committee, the full Senate has the opportunity to vote to confirm or deny this nominee. Traditionally, the nominee would not even appear before the committee during these hearings. Today, the nominee is subjected to intensely politicized hearings as senators scrutinize everything they have ever written or said. Similarly, today in the press and online many interest groups weigh in on the nominees credentials beyond the formal testimony. The confirmation process for all judges in the federal judiciary, not just the Supreme Court Justices, appoints the judge for life to a position that is very difficult to remove someone from. Once confirmed, today’s justices generally disconnect from the world of politics. However, just as the twenty-four hour news cycle is a modern development so is the hermit like lives of justices. But, this has not 1 Cases such as, Marbury v. Madison, Dred Scott v. Sanford, Brown vs. Board of Education, Gideon v. Wainwright, Miranda v. Arizona, Roe v. Wade, and Bush v. Gore. 2 28% of Americans think that a 5-4 decision by the Supreme Court is sent to Congress for the final decision. Only 32% of college educated Americans could identify the Court as one of the three branches of the federal government. According to polling done by Annenberg Public Policy Center, and the Constitution center, http://blog.constitutioncenter.org/2016/02/surveys-many-americans-know-little- about-the-supreme-court/ 3 The modern Supreme Court usually has nine Justices, eight Associate Justices and one Chief Justice. During the writing of this paper, and at the time of the final draft due to the unexpected death of Justice Scalia, there are only eight sitting justices. The number of justices has varied over time based on legislation from Congress. !1 always been the case. Justices like Chief Justice John Jay and Chief Justice Charles Evans Hughes played very public political roles which made them well known and respected beyond the Court. Today, for example it seems impossible that a former President could be appointed to this “non political” branch, but President Warren G. Harding appointed ex-President William Howard Taft in 1921. This branch of government sits in a unique, insulated position without elections or campaigning. The Judicial branch, while reviewing the actions of the other two branches, is thought to need minimal contact with the other branches. This is also a shift as those selected to be justices has also shifted from notable political elites to mostly esteemed judges and legal scholars. The American constitutional system requires a precise mix of checks and balances in addition to cross branch cooperation in order to function. Overtime, personal relationships between Supreme Court Justices and Presidents have changed, as have popular views of the propriety of such friendships. While some relationships such as those between President George Washington and Chief Justice Jay or President Franklin D. Roosevelt and Justice Felix Frankfurter have appeared to fit a cooperative model of the Constitution, others such as President Lyndon B. Johnson and Justice Abe Fortas, have appeared somewhat corrupt. This research seeks to understand the unexplored history of these extremely important personal relationships. The types of people nominated has also changed, from senators, former presidents, and key administration officials to proven judges and legal scholars, often with clear political leanings. Is there a type of relationship between Presidents and Supreme Court Justices that either enhances or hinders their work? How do such relationships fit into existing theories of presidential leadership? This research will focus on relationships between presidents and Supreme Court !2 nominees and justices, anecdotally and normatively. In a world where the Supreme Court has become increasingly relevant and present in the political arena, it is important to understand this evolving history.4 This paper will start by discussing the creation of the Court and its role through the Constitution and Federalist Papers. It will then discuss theories of presidential power. The next section will cover Presidents Washington, Abraham Lincoln, Lyndon Johnson, and Richard Nixon and their relationships with both specific justices and the Court as a whole. These presidents represent transformative political periods and exemplary relationships with the Court. Each of these Presidents also help to illuminate the connections between relationships and Stephen Skowronek’s theory of presidential leadership, highlighted by different political eras and dynasties. The next section focuses on justices that stand out for their notable relationships or particular tenures on the Court. The section on justices will focus on the justice’s relationship with multiple presidents throughout their career. The conclusion will discuss overall successes and failures of president-justice relationships and analyze general trends, as well as provide anecdotes and examples of these trends not explicitly covered in the previous chapters. Finally, I will seek to explain the ideal model of presidential relationships with the Supreme Court accounting for American constitutional theory and theories of presidential power. In addition to the constitution and Federalist Papers, the research that follows relies heavily on primary sources, most notably presidential and judicial memoirs, personal papers, phone conversations, public speeches, and other first hand resources found in archives of Presidential libraries and the National Archives. Secondary sources including books and articles 4 This research’s importance is only amplified by the current Supreme Court vacancy. !3 that lay out theories of presidential power and judicial selections will also be present throughout this paper. This research will try to determine the role Presidential relationships with Justices play in the grand scheme of the American constitutional system. Overall showing that relationships between justices and presidents play a significant role in the selection process of justices and when kept relatively independent are not a violation of separation of powers. President justice relationships can be split into two categories a Washington model and a post Johnson Model. In the Washington model, the justice is chosen for political purposes, their close proximity to the president, and their notoriety. In this model the politics behind choosing a justice come down to politics in its purest form, their selections furthered the president’s power and ideals and satisfied politic needs of the president. Their close proximity to the president whether directly or through similar social circles plays a role in their appointment and also their time on the Court is marked by further pursuing relationships. Justices in this category are also chosen for their notoriety and more often than not have very public careers in politics before joining the Court. The other model, the post Johnson model, the president justice relationship is often not a factor in their selection. While the careers of these justices are also notable it is almost entirely contained within the legal community and when nominated they are not already household names. The only similarity is that they may be chosen to satisfy political needs of the president and as a representation of the presidents political philosophy. The ideal justice from both models and that embodies in many ways the best of the Washington model is Justice Louis Brandeis. !4 I. Theory and Literature Chapter 2 Constitution and Federalist Papers To understand the intentions behind the Constitution and the design of the American system, the Federalist Papers, contain the reasoning, arguments, and dreams of Alexander Hamilton, James Madison, and John Jay, and to some degree the will of the members of the Constitutional Congress. To contextualize the relationships in question and their role within this system, certain essays stand out. especially those that deal with the Judiciary as well as those that examine both separation of powers and