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 checks and balances. The specific papers analyzed include 47, 51, 78.

In 47, Madison notes that the system of separation of powers does not prohibit interactions between the branches;

From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,'' or, "if the power of judging be not separated from the legislative and executive powers,'' he did not mean that these departments ought to have no Partial Agency in, or no control over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.5

Here, Madison makes it clear that the executive, judiciary, and legislative duties and bodies of government must be separate branches of government, and not be contained within the same political actor or body. Madison suggests that while branches must be able to work together when needed, the relationships ideally would not be so close as to override any unbiased

5 James Madison, Federalist No. 47, 30 January 1788

!5 checks of power. The relationship between a justice and president must not influence the Justice so much that they rule a case to be constitutionally sound as a favor or when they believe it is not faithful to the law. But importantly, Madison does allow for “Partial Agency,” thus giving room for connections between these separate branches. In this Madison opens the door for relationships.

In 51, Madison elaborates on this ideal, while also complicating the appointment process:

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.6

While this statement seems to restrain the appointment process of judges by the president,

Madison is emphasizing the necessity for independence amongst the actors within the different branches of government. Regarding appointments he suggests the least agency possible. Tyranny risks a role less in the appointment process but instead in the control over the power exercised by a different branch. The risk of tyranny arrives if a President objects to a Court ruling and without due process fired each of the Justices and replaced them with his personal lawyers. The design of the Constitution prevents tyranny by including the different branches in selecting and appointing justices. Madison warned against allowing the president to appoint his associates unilaterally. To the Founders, tyranny was power in the hands of the very few. Political relationships would violate the founders wishes if a President exerted too much influence over someone he appointed to the Supreme Court. A later portion of 51 describes the need for complete independence among the different branches’ actors.

6 Federalist No. 51, James Madison, February 6, 1788

!6 It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.7

Madison describes that the system is designed to guarantee independence in action. No one department is able to exercise complete power over anything, with this check in place it is harder for personal relationships to dissolve the separation of powers established.

In 78, Hamilton explains why the founders viewed the Judiciary as the least dangerous branch, since it had relatively little power. Since the judiciary can neither affect spending or enforcement of laws without having a case brought to them, this branch would have the tougher time gaining power and taking liberty away at will.

The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.8

While there is little need to fear this branch, that does not mean it is incapable of usurping power. The fear is not of what the Judiciary can do on its own, but rather of what the Judiciary can do if it were to team up with the Executive. The Federalists see a potential for tyranny through relationships between the President and Supreme Court Justices.

It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers.” And it proves, in the last place, that as liberty can have nothing to fear

7 Federalist No. 51, James Madison, February 6, 1788 8 Federalist No. 78, Alexander Hamilton, May 28, 1788

!7 from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.9

Hamilton suggests here the dangers of relationships that are too close and compromising.

Relationships such as these could dominate the Court’s composition and contribute to the tyranny feared by the Federalists. Judicial appointments being lifetime appointments furthers this fear as tyrannical behavior is not as easy to correct through elections in this branch.

The Federalists never approached these questions head on, but they contextualize the ideals behind the system the relationships will play a role in. These writings suggest that the ideal relationships between Presidents and Justices would be that of cordial coworkers. The

Founders would have been happy with Presidents and Justices who knew each other and had a good working relationship. Their fear of tyranny is only present when the president justice relationship defeats independence, and nullifies checks and balances. The Founders approved of

Presidents appointing Jurists they respect and knew, but not personal lawyers.

Chapter 3 Going Public

Samuel Kernell’s theory of the presidential strategy, Going Public, which describes the use of the press and planned leaks of information as a tool the president uses to win public support and leverage bargaining position with Congress. This strategy can be applied to president justice relationships in many different ways. One way this strategy could be utilized is by using it

9 Federalist No. 78, Alexander Hamilton, May 28, 1788

!8 to defuse any concerns the public or the Senate could have about a judicial nominee’s relationship to the president before the hearing actually takes place. In this scenario the president would hold a press conference or release a statement discussing their relationship with their the nominee and why the individual’s character makes them a good choice. Going public preemptively with the relationship helps avoid any appearance of impropriety. The president can also use this strategy in order to publicly announce his preference for how the Court should decide a case.

Leaking information is another strategy a president could use based on Kernell’s theory in order to sway the American people to get his or her preferred justice on the Court. The president could leak out a short list of very radical names that would never make it through the

Senate, thereby when he announces the actual nominee, the nomination appears much more reasonable and makes for a smoother confirmation process. In today’s political climate, especially that surrounding nominees to the court, this seems like the most likely and potentially most successful use of Kernell’s strategy.

Presidents can also discuss their preference for a nominee without naming specific names by discussing specific qualifications. This makes their eventual selection seem like a good nominee since the president has already articulated his preferences for nominees with certain qualifications. A good example of this is President Nixon’s appointment of Chief Justice Warren

Burger. Nixon often referred to the need to appoint “law and order Judges” to help realign the criminal justice system with conservative values after years of liberal decisions from the Warren

Court. When it came time to replace Chief Justice Earl Warren, Nixon labeled Warren Burger as a “law and order Judge”making it seem that he had stayed true to his promise. Today,

!9 presidential candidates are often asked throughout the campaign about the kinds of judges they would appoint to the Court, which allows for them to describe their preferences. If they are elected these preferences resurface when they nominate someone to the Court.

Chapter 4 The Politics President’s Make Stephen Skowronek’s book The Politics President’s Make; Leadership from John Adams to Bill Clinton, covers many aspects of Presidential Power theory. To this research the most important aspects are the designations given to different Presidents, through these designations, this thesis will explore how the actions characterized by the different characterizations of

Presidents impact their relationships with and selections of Justices. To a large extent this theory can only be helpful in a tangental means because the supreme court is rarely addressed in this theory focused more on legislation and other Presidential actions. The three characterizations are politics of Reconstruction, Articulation, and Disjunction. Politics of Reconstruction come when a

President of a different party from the previous President dramatically change American politics and thereby America through their radical new actions. These Presidents wield extraordinary power and inspire generations of leaders to follow. Presidents of Reconstruction include two prominent examples studied here, Lincoln and FDR. Politics of Articulation focus on Presidents who carry on the legacy of a reconstructor President, the ultimate articulator is President Lyndon

B. Johnson who in many ways helps complete the dream of FDR’s administration. This helps characterize his actions. Finally Presidents who are part of the Politics of Disjunction include

Jimmy Carter, these are Presidents who fall in a long line of Articulators but come from the other party and represent a political response to the dynastic policies of the previous Reconstructor and their articulators. While the actions of Presidents concerning Justices will not always match their

!10 Skowronek distinction, this can help outline different themes and practices. This partially comes from the fact that with the Supreme Court, any President who has a nomination has the chance to drastically change the makeup of the Court and leave a legacy that gives them a momentary presence similar to that of the Presidencies of Reconstruction. Keeping this in mind, President’s who are articulators following this theory will in many cases hope to emulate the nominations and relationships of their Reconstructor and Presidents of disjunction will hope to nominate

Justices who are in direct opposition of those nominated by the previous administrations. On another hand, Skrownek’s theory also deals with the political climates and eras the Presidents operate in. This background very much helped contextualize much the research about the different Presidents and their approach to nominating Justices and keeping relationships or building relationships with those on the Court. For instance, due to the politics of their day

President Roosevelt is much more likely to cultivate relationships with Justices over a post

Watergate President in a time of public distrust and political scrutiny of government. While this theory does not dominate the research explored throughout this paper, it definitely helped shape much of the research and understanding of the Presidents and the way they used their power as

President.

!11 II. Presidents

Chapter 5. George Washington It is hard to overstate George Washington’s importance in American history. He led the fledgling nation during the Revolutionary war and was the clear choice to be president. As the first president, Washington was aware that every decision he made would be used as precedent.10

The Supreme Court, being the most ambiguously described branch in the constitution had a heavy burden of not only playing a crucial role in the young government but also had to lay the groundwork for future courts. Luckily for the Court, the justices were not alone in this endeavor, they had the benefit of the Judiciary Act of 1789 which began to describe and allocate their power. Furthermore, the Court was able to take a certain amount of direction from Washington.

The first Court was filled with interesting anecdotes that create a foundation for future relationships between justices and presidents as well as creating norms for the Court.

To a large extent President Washington had complete discretion for choosing the first justices, with Article Three of the Constitution providing no clear qualifications for potential nominees. The criteria a president sets out for selecting nominees can tell a lot about their philosophy of the role of the Court and its relationship to the president. For President

Washington, his selections were especially important as they would set the tone for the Court and its members. In a letter he sent to the first seven Justices, Washington stated that “The Judicial system is the chief Pillar on which our National Government must rest.”11 Through this statement, Washington endowed the Court with a sense of importance and suggested his view of

10 “History has Its Eyes on You”, Hamilton: The Musical. Miranda, Lin Manuel. "The Official Page For The Music of Hamilton: The Musical." The Official Page For The Music of Hamilton: The Musical. N.p., n.d. Web. 11 Jan. 2016. 11 Friedman, Leon, and Fred L. Israel. 1969. The justices of the United States Supreme Court, 1789-1969, their lives and major opinions. New York: Chelsea House in association with Bowker. p. 111

!12 the Court’s role. This view can be better understood by his criteria for selecting justices.

Washington’s criteria as explained and organized by Henry J. Abraham in his book, Justices,

Presidents and Senators. The criteria not only makes logical sense for choosing the first Supreme

Court but suggests a great deal about the importance of political relationships with George

Washington. Washington’s Criteria were,

(1) support and advocacy of the Constitution; (2) distinguished service in the Revolution; (3) active participation in the political life of state or nation; (4) prior judicial experience on lower tribunals, or at least litigation experience thereupon; (5) either a “favorable reputation with his fellows” or personal ties with Washington himself; (6) geographic suitability; (7) “love of our country.”12

These criteria almost all contain implications of the necessity for political connections and relationships to the President. A majority of the biggest supporters and advocates of the constitution are going to be people at the Constitutional convention who were there with

Washington, or would most likely have close ties with people at the convention and therefore a connection to Washington.13 Distinguished service in the revolution would very much suggest that if you do not at least know Washington yourself you know people high enough in the command structure that there is minimal separation between you and the President. With a smaller number of political elites in a smaller number of states with a total population of only

3.83 million people14 being an active participant in political life of one’s state would provide a number of connections to Washington or those within his inner circle. Furthermore active

12 Abraham, Henry Julian. 2008. Justices, presidents, and senators: a history of the U.S. Supreme Court appointments from Washington to Bush II. Lanham: Rowman & Littlefield Publishers. p. 57 13 Seven of Washington’s appointee’s to the bench were present at the constitutional convention. 14 "1790 Overview - History - U.S. Census Bureau". Census.gov. N.p., 2016. Web. 11 Jan. 2016.

!13 participation in politics at a national level at the time would almost guarantee that the person would be on Washington’s radar if not already a friend. The final two criteria are the exceptions to the rule of relations, however both make sense for creating a new institution within a new nation, these criteria are those of geographical suitability and patriotism. While each of these criteria give a different opportunity for a nominee to have a connection to Washington, many nominees being already close to Washington would easily satisfy many of these criteria.

John Jay, the President’s choice for Chief Justice is the perfect example of Washington’s criteria. Not only had Jay been involved in the war and the Continental Congress, but he had also already proved his patriotism by serving in other posts such as the Minister to Spain. As the negotiator of the Treaty of Paris, Jay had proven himself as an leader of the new judiciary.

Representing the importance of close political and working relationships at the time, the Chief

Justiceship is not the first position within the new government Washington offers Jay.

Washington first offered Jay the position of Secretary of State, a cabinet post that would work much closer with Washington as a key advisor, but Jay turned down this position. Jay, however, was not completely convinced of the importance of the Court. His call to service was not fully selfless, according to a letter from the Secretary of the Senate, Jay waited to see which would pay more, Secretary of State or Chief Justice, before ultimately taking the position of Chief

Justice.15

John Jay is the perfect precedent for future extra curricular appointments and responsibilities taken on by future justices, while also clarifying that this is not the business of the Court. In the summer of 1793, Washington sends a letter containing a list of questions he

15 Schwartz, B. (1993). A history of the Supreme Court. New York: Oxford University Press. p. 17

!14 wanted the Justices to answer. Instead of answers, Washington received a letter detailing how this was a violation of the separation of power according to the Justices. The Court explained that they regret that this may be an embarrassment for Washington but that, “the Power given by the

Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments.”16 The Justices explain to the president that they planned on answering only strict issues within legal suits rather than just advising the President on executive action. This shows a clear distinction between what

Washington hoped for in the relationship between the Court and the Presidency as opposed to what Jay, Wilson, Iredell, Blair, and Paterson hoped for. Under Washington’s view the Court and the President would have an open dialogue and would be able to serve as key advisors on executive action to clarify the constitutionality of decisions before they were made, which in the end could help avoid constitutional battles making it to the Supreme Court as legal controversies.

According to this school of thought, Washington’s criteria perfectly picked Justices that would be able to advise the President in the way he would value. By picking justices that already had some sort of rapport with the President, it would make these requests easier and the President would have a different level of confidence in the answers he received knowing that the justices already have his respect and values similar to his. This relationship would also be precedent for future situations such as Lyndon Johnson’s relationship with Fortas. Examples such as Fortas moving into the White House for two days to advice the President during race riots in Detroit as well as

16 The Papers of George Washington, Presidential Series, vol. 13, 1 June–31 August 1793, ed. Christine Sternberg Patrick. Charlottesville: University of Virginia Press, 2007, pp. 392–393.

!15 phone conversations with the Justice about Vietnam strategy rather than pending constitutional cases fit the model Washington tried to create through this letter.17

Jay and the other justices disagreed that the Court should hand out advisory opinions. The justices instead established themselves as primarily a legal institution. One reason why the justices might have made this distinction is to establish a steady workload for the Court. During the early years of the Court, the justices were both bored and unhappy with little work on their docket. DeWitt Clinton, a prominent politician at the time who would go on to be both a Senator and Governor of New York, explained that the first Court had no business stating, “The Supreme

Court of the U. States is now in session and has done no other business than admitting a few

Counsellors and making a few rules.”18 For this reason, one could understand why the early

Justices would declare that their role is not an advisory one but rather to deal only with litigation as they would rather have controversies arise giving them work than nipping them in the bud by answering the President’s requests. Further they touch on the ideal of separation of powers in their letter. This is important as it would have been easy for the Court to disappear as a completely separate branch of government and dissolve into an arm of the Executive. This was fresh in the mind of many of the justices signing onto this letter as per Washington’s criteria they were recently involved in the revolution and drafting of the Constitution and therefore knew all to well the fears of an all too powerful executive. Furthermore, as seen through Justice Jay’s dilemma over taking the position of Chief Justice as well as his successor, John Rutledge’s eventual resignation from the Court in order to become the Chief Justice of the South Carolina

17Abe Fortas phone call with President Johnson on Jan 26, 1966 (WH6601.11) http://millercenter.org/ presidentialrecordings/lbj-wh6601.11-9535 18 Marcus, Maeva, and James R. Perry. 1985. The Documentary history of the Supreme Court of the United States, 1789-1800. New York: Columbia University Press. p 692

!16 Court of Common Pleas, the justices were clearly worried about whether or not this Court was really as important as Washington had suggested in his letter to each justice upon their appointment.19 To these Justices it is important to distinguish themselves as a crucial separate branch of government that does more than advise the President on questions the Secretary of

State has posed so that they can give their position purpose and importance.

While these reasons prove to be compatible with the goals of the justices on the Court at the time, they also fall into direct conflict with actions taken later by John Jay. John Jay used the letter discussed earlier to declare his independence from the Executive Branch, only to later take on extra appointments from other branches of Government on top of his post as Chief Justice.

The most notable example of Jay ignoring separation of powers and demeaning the importance of his position as Chief Justice is his acceptance in 1794 of the position of Special Ambassador to England through which he negotiated the Jay Treaty. Scholar Bernard Schwartz comments that

“These extra Judicial appointments had an inevitable negative effect upon he prestige of the fledgling Court.”20 The relative importance of the Supreme Court is further burdened by

Washington’s first Chief when while away he is nominated to be Governor of New York, a position he later resigns to take and that one New York paper at the time dubs a “promotion.”21

While imperially these strange extrajudicial roles and later his resignation seem strange, they represent important precedent that plays a key role in future relationships between Presidents and

Justices that will play key roles in cases to be explored later in this study. One obvious parallel is

Justice Robert H. Jackson being appointed the United States lead prosecutor in the Nuremberg

19 Schwartz, A History of the Supreme Court p. 27 20 Schwartz A History of the Supreme Court. p. 27 21 Marcus The Documentary History of the Supreme Court of the United States, 1789-1800. p. 759

!17 Trials following the Second World War. In both cases a member of the top court is sent to lead a very important international affair that with both dramatically effect the United States and the rest of the World. Both can be seen as commentary on the relative importance of the Court, however they point in two different directions. For Jay it is easier to read his absence from the

Court as downplaying the importance of the work of the Supreme Court as he was bored of the lack of work and took on other more fulfilling roles. With Jackson, his selection for a concurrent appointment comes from his prestige and incomparable experience as one of the top prosecutors and jurists in the country at the time which lead to his nomination to the bench. Jay’s use of the bench as a political launching pad provides a even more precedent for future justices. While in

2016, being named Chief Justice is seen as more of a final stop during one’s legal or political career, Chief Justice Jay uses this position to land other jobs that at the time were deemed more prestige such as the governorship of New York. Charles Evans Hughes who leaves the

Governorship of New York to serve on the Court only to leave to eventually become Secretary of

State and then ultimately returning to the Court as Chief Justice. President Lyndon Johnson also uses this move as precedent when moving the chess pieces that end up being the Abe Fortas scandal. President Johnson convinces Arthur Goldberg to leave the Court to take the position of

Ambassador to the United Nations telling him that this path would eventually lead to the Vice

Presidency. Though the evidence suggests Jay did not enjoy his role as Chief Justice, his decisions to separate the position from Presidential advisor and decisions to use this position to gain more political roles including some much closer to the President such as Special

Ambassador to England plays a key role in the future of the relationships between justices, presidents, and politics.

!18 John Jay also provides an interesting representation of both sides of relationship between the Court and the White House due to his personal relationship with the President. As explained earlier Jay is the ideal candidate under Washington’s criteria for justice, a lot of this comes down to the relationship between the two men. If the Jay Washington relationship followed by all

Presidents and Chief Justices, then the appointment of Abe Fortas would have been the perfect selection for Johnson’s Chief Justice, as Jay and Washington wrote to each other on a fairly regular bases dating back to the revolution and not ceasing once in office. When looking through the personal diary of President Washington, John Jay appears as a regular companion for walks, tea, meetings, and social functions. This close relationship and use as a personal advisor seems to go against the model suggested by Jay’s rejection of formally helping Washington, but might serve instead as the true Washingtonian model. This would be a more nuanced complex relationship between branches of government. In this model, the courts do not formally advise the President as that would be to them a violation of the separation of powers as outlined in the

Constitution, however this does not prevent individual political actors and office holders from playing key roles as advisors to one another. Formally, the Justices cannot tell Washington what is or is not constitutional but an individual Justice can serve personally as an advisor and friend beyond their official capacity.

Washington and Jay were not the only exchanging letters at this time. The justices were very unhappy with a major part of their job and they wanted a presidential fix immediately. Their complaint had nothing to do with the lack of cases before the Supreme Court. Instead their complaint was with “riding circuit.” Before there were circuit court judges to hear the appeals cases from each region, the justices had to travel to individually assigned regions. This was the

!19 least favorite aspect of the job for all of the justices, and easily the most frequent complaint in the form of letters to the president. In February of 1792 Justice Cushing outlined his complaints in a letter laying out exactly how long it took him to travel and the hardship he had to endure just to carry out his judicial duty.22 Justice Samuel Chase also sent a letter declaring “a permanent system should not impose such hardship on any officer of Government.”23 In 1791 Justice Iredell complained, “I will venture to say no judge can conscientiously undertake to ride the Southern

Circuit constantly, and perform the other parts of his duty… I rode upon the last Circuit 1900 miles: the distance from here and back again is 1800.24” John Jay cited this burden when he resigned saying that he was “Seven Months of the Year from his family.”25 Justice Thomas

Johnson spent only a year a on the Court out of fear that he was wasting more than half of every year in the few years he could have left with his family, riding circuit.26 These complaints finally lead to change by Congress in 1793, while the system wasn't totally changed and fixed, enough was done to satisfy the justices. The use of writing the President, their friends, family, and

Congressmen, shows that even once on the Court when they separate themselves from advising the president and congress, the justices still are able to use their office to render favors for themselves. Much of Washington’s relationship with the Supreme Court became complaints, either that they did not have enough to do due to the lack of cases, or that the work they did have was too burdensome. It is understandable that they would write about the fact that their job was

22Schwartz A History of the Supreme Court. p. 18 23 Schwartz A History of the Supreme Court. p. 18 24 Schwartz A History of the Supreme Court. p. 20 25Schwartz A History of the Supreme Court.p. 19 26Schwartz A History of the Supreme Court. p. 19

!20 too dangerous and trying, but this may have been corrected sooner had they been willing to publicly advise the president in other areas.

Chapter 6. Abraham Lincoln

Abraham Lincoln, while not blessed with a unified nation, had three open seats on the

Supreme Court upon his inauguration. Two Justices had died and one had defected to go lead the

Judiciary for the Confederacy.27 As a former lawyer Lincoln valued the Court and envisioned its role as a partner in the nation’s preservation, a view that very much guided his approach to relationships with Justices and his five appointments. This view of unification also played a key role in his criteria for his nominees. Lincoln, wanted nominees who were anti-slavery, pro-

Union, conservative, and would not alienate the southern states completely.28 As he was picking his nominees personally and had fairly strict requirements of these nominees it is easy to see a strong preference for Justices with whom he had a personal relationship.

The strategy in his choices is brilliant, not for the Justices he put on the bench but the symbolism of their appointments. The amount of thought put into a relatively less powerful institution not only in the 1800s but especially at a time when the country was breaking in two, backs up the personal nature with which President Lincoln approached the Court. His first nominee was Justice Noah H. Swayne, born a southerner, had freed his slaves and moved north as well as fitting the pro union and conservative bills perfectly. Furthermore, by replacing an

Ohio Justice with a current Ohio resident represented a thank you to the Ohio republicans that were key in his election.29 With his next appointment the President knowingly set aside two

27 Justices Daniel and McLean had passed away, while Justice Campbell resigned to join the confederacy.

28 Abraham 94

29 Abraham 94

!21 nominees he had a personal relationship with, a Senator and Secretary of Interior, for a southern born Republican living in Iowa who represented a geographic diversification of the Court.3031

The selection of Samuel Freemen Miller did not fully represent an abandonment of his reliance on relationships as 129 of 140 members of Congress and all but four senators signed a petition urging the the President to nominate Miller.32 By selecting someone closer to the newer territories and someone so unanimously loved and admired, Lincoln used this nomination again for personal benefit to help build and keep political unity when possible.

After pleasing the political elites, he had more political capital for his third selection and was able to return to his preference for justices he knew. The short list here included the

Republican Senator of Illinois, Browning, Judge Thomas Drummond and Judge David Davis.

His entire short list, as just mentioned, were government officials from Lincoln’s home state of

Illinois, showing his preference for those with whom he had a relationship. This ideal is only furthered by the fact that Lincoln chose Davis, who he undoubtably was closest with. Davis and

Lincoln first met when Lincoln argued cases in front of him as a lawyer in Illinois. Davis went on to be Lincoln’s campaign manager playing an integral role in electing him President of the

United States. The nomination of Justice Davis represents an extreme case where the President nominates a Judge with whom he has not only argued before but someone who was key in getting the President nominated and elected. It is safe to say that they relationship was far beyond a simply professional political one but was a deeply personal one. While it would be easy to see this nomination and be appalled by the level at which these men were connected, Justice

30 Abraham 94 31 Sen. Orville Browning and Sec. Caleb Smith 32 Abraham 95

!22 Davis did not go on to have a necessarily corrupt tenure on the Court and further did not vote always with Lincoln whispering in his ear. In the key Civil War case Ex parte Milligan (1866)

Davis writes for the Court limiting presidential authority and President Lincoln’s use of military courts rather than trying a civilian in a Civilian court.33 Chief Justice Chase, as well as Justices

Swayne and Miller vote in favor of their nominating President’s actions, while Davis is joined by fellow Lincoln appointee Stephen Field. This decision comes after Lincoln’s death but still is a key ruling for his legacy and on a major use (or abuse) of presidential power. Had Lincoln been alive, his trust in his Justices, especially the one who got him to the presidency would have led him to expect a different decision, still authored by Davis. For this reason, President Lincoln was successful in nominating strong Justices who were appointed for but not corrupted by their personal relationships.34

Lincoln’s next appointment Stephen Field reached across the aisle but remained true to his nomination of pro-war pro-Union judges. Field also brought in geographic diversity to the

Court as he was an appointment from the growing recent state of California where he had served as Chief Justice. Justice Field today is best known for his pioneering of ideas supporting

Substantive Due Process in the 14th Amendment. While Field played a key role on the Court in the final years of the Civil War and early years of Reconstruction, he also represents one of many

Justices who did not let their political appointment stunt his political career.35 He made multiple

33 Civilians cannot be tried by presidentially created military commissions when the civil courts are still in operation, "Ex parte Milligan." Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Mar 6, 2016. https://www.oyez.org/cases/1850-1900/71us2 34 Davis’ time on the Court is also significant as he was bored by the appellate work and briefly runs for President. 35 Clouatre, Doug. 2010. Presidents and their justices. Lanham, Md: University Press of America. p. 63

!23 failed attempts to become the Democratic nominee for President while remaining a sitting

Justice, speaking volumes to the political climate of the day allowing political elites of any and all positions open opportunities to run for the highest office of the land while not always giving up their current posts. While not an obvious choice of Lincoln’s Field is remembered as an incredibly influential Justice brought to the Court for geographic and political diversity, while still remaining conservative and pro-Union. “Stephen Field prove to be on of Lincoln’s and the

Court’s most influential Justices. Thirty years after the President’s assassination, Field remained an influence on the law, expressing views that would dominate the Court until the Franklin

Roosevelt Administration.”36 Interestingly he was the tenth Justice on the Court until the Court was later reduced from ten justices to eight.

President Lincoln’s final nominee was Salmon Chase. Chase represents a Justice that follows Lincoln’s model of strong anti-slavery advocates and someone with close political and personal ties to the President. Chase became a Republican because of the issue of slavery and became a national figure in the Free Soil Movement. Chase was among the many candidates for

President at the 1860 Republican Convention and was rumored to have traded his delegates to

Lincoln for a cabinet post.37 Chase became Lincoln’s Treasury Secretary. While this and the considerable control over policy Lincoln gave Chase would suggest a close and loyal partnership, their relationship proved much more complicated. Chase even challenged Lincoln at the 1864 Presidential nominating convention. He tried multiple times to resign but was always convinced otherwise by the President.38 However, tired of his constant challenges Lincoln

36 Clouatre 65 37 Clouatre 65 38 Clouatre 65

!24 replaced Chase after being renominated by the Republican party. To complicate things further,

Lincoln valued his alliance so promised him the Chief Justiceship upon Taney’s death. As the

Chief Justice during Reconstruction, Chase also was one of the few Chief Justices to oversee impeachment hearings of the President during the Andrew Johnson Trials.

President Lincoln had great influence over the Court during his time as president. In most of these cases he sought justices who he had a personal connection with, most likely because of the strong rivalry between Justice Taney and President Lincoln. While Taney sought to fight the President, the President sought through his appointments to make the Court an ally in rebuilding the nation, knowing it would play a large role in reconstruction. Lincoln, much like

Washington had very unique circumstances during his Presidency that played a key role in his selections and views of the Court. To this end it is somewhat surprising to see his eventual promotion of the unfaithful Chase to Chief Justice, but this represents that while throughout his selections a close relationship played a key role, he was willing and able to look past relationships to the need of the Court and truly believed Chase’s support was necessary enough to give him the position. One of the most difficult aspects of reflecting on Lincoln’s nominations is that to a certain extent we cannot see how their relationships progressed after nominations and throughout his Presidency, as his Presidency was cut short. His rocky relationship with Taney and being saddled with a hostile Chief Justice, informed his choices including putting one of his closest political allies, Justice Davis on the Court. Lincoln also represents how these relationships and how the Court can be used for political benefits beyond simply Judges who vote a certain way, as the justices were strategically chosen for the roles they could play in reunification after the war. Lincoln should serve as a model in his selection process looking for

!25 specific qualities and often favoring relationships but also looking for geographic diversity and even at times political diversity (within reason). Even before the Court rose to the level of prominence it has today, Lincoln recognized its importance the role it could play in government if those on the Court possessed the correct political relationships and ability.

Chapter 7. Lyndon B. Johnson Lyndon B. Johnson is known for his incredible success passing legislation, such as the Civil

Rights Act, Voting Rights Act, and Great Society legislation, as well as his mishandling of the war in Vietnam. Johnson’s personality is remembered by political historians as commanding and providing enough of an incentive to make other leaders bend to his will. At his core, Johnson’s rare leadership abilities and political intellect were a product of his ability to cultivate relationships. Johnson relied on friendships that he developed for years in order to convince others to do what he wanted while believing they were doing what they wanted. President

Johnson’s political intellect developed as his relationships did, the more he knew about a person, the more he could manipulate them. Finally, Johnson was a President with a plan. His aides often say his legislative success came form years of thought and planning, so that when Kennedy was assassinated, the newly sworn in President Johnson immediately formed his plan and got to work. President Kennedy, in Skowronek’s theory of Presidential power, does not rein in a new political dynasty, rather he is the legacy of President Roosevelt. Skowronek comments on the similarity between the leadership styles, political acumen of both Johnson and Roosevelt.39

While he acknowledged that his plans for the Great Society were intended to expand the reach

39 Skowronek, Stephen. 1993. The Politics Presidents Make: Leadership from John Adams to George Bush. Cambridge, Mass: Belknap Press. p 27

!26 and successes of the New Deal, his actions certainly makes one think he is a Reconstructor.40 All this can be see through his work with the Supreme Court over the course of his Presidency, starting immediately and lasting through his final days in office. During his time as President,

President Johnson built and maintained close ties with many of the Justices, he manipulated one of his closest alleys and friends onto the court, made one of the most historic appointments, and one of the most historic mistakes leaving two seats empty at the end of his term.

President Johnson, the master planner and manipulator had been developing important relationships long before Kennedy was assassinated or even chose him as his Vice President.

Going back to his time in the Senate and the House, letters between the future President and sitting Justices were common. Whether it was an invitation to ceremony, social gathering, meeting or conference, once he assumed office President Johnson was no stranger to the sitting

Justices. Writing the then Congressman Johnson, Chief Justice Warren invited him to a summer judicial conference at the Supreme Court when most of DC was on vacation, inviting him to see the speeches and network with some of the most influential judges and lawyers in the United

States. Congressman Johnson cordially writes back expressing his disappointment that he is already back in Texas and unable to come to the conference in DC but expressing interest the event.41 This relationship does not disappear but only grows and by the time Johnson needs the

Chief Justice to serve as the chairman of the Kennedy Assassination Commission, he is able to use this relationship and turn Warren’s answer from a no to a yes. As President, he continues this relationship with an annual state dinner honoring Warren, Vice President Humphrey and the

40A Skowronek term for a President who changes the political paradigm. 41 Earl Warren to the President, White House Famous Names, Earl Warren, WHCF, LBJ Library

!27 Speaker of the House. This relationship goes so deep that noted in the President’s daily diary kept by the staff to keep track of the President’s schedules and meetings, Chief Justice Warren is noted as spending time in the White House pool with Johnson and Justice Fortas. While the common narrative of Johnson’s Presidency is his use of these relationships for his political gain, a simple look through his personal papers and daily schedules suggests that the President also put in his fair share of work cultivating these important relationships. Another example of the cultivation of friendship can be seen through LBJ’s correspondence with Justice William O.

Douglas. Douglas, a lover of the outdoors, wrote the President often about his hikes around the world.42 In fact he often invites the President or First Lady on hikes in the Washington area.

While the responding letters show very few examples of the President or Lady Bird accepting these invitations, they always further the discussion and inquire further about the interests of the

Justice and his family.43 An admirer of President Franklin Roosevelt and progressive supporter of the Civil rights movement, Johnson knew the importance of the Court and knew these relationships would play key roles in the change he was trying to create. To this end, these letters nearly never mention specific cases before the Court. While his phone calls and meetings show that he has clear plans and goals, the many letters about hiking, birthday messages, and social invitations, show a genuine interest in building friendships with those in other branches of government. This highlights the importance of these relationships. Johnson accomplishing major reform passing bills on everything from voting rights, to the environment, to education and more,

42 William O Douglas to the President, White House Famous Names, William O Douglas, WHCF, LBJ Library 43 Multiple letters in the Douglas Famous Names file

!28 probably could have never been as successful if he had ignored these key political actors or only used his powers to intimidate rather than to cultivate and persuade as well.

President Johnson’s success can also be seen through his use of another power strategy, promoting and rewarding those close to him. This can be seen in three prime examples connected to his time on the Court, Goldberg, Fortas, and Marshall. From the moment he took office,

President Johnson had a plan for the Court and put it into place. This plan began the day

Kennedy was shot, when among the first phone calls Johnson made that day was to Justice

Arthur Goldberg. Goldberg had a relationship with Johnson as he had been in Kennedy’s cabinet as Secretary of Labor before being appointed to the Court. Through this working relationship,

President Johnson knew that Goldberg was ambitious and saw himself eventually climbing to the

Vice Presidency. Although Johnson was not going to make Goldberg Vice President, he used this to lure him off the Court in the guise of rewarding him with a promotion. During that first phone call, Johnson accepts his sympathy and speaks with his wife, but more importantly lays the foundation for Goldberg’s future moves by telling him how important he will be to the new administration and how he needs Goldberg’s knowledge to help him. He gets Goldberg to write sections of his first speech later that week to a joint session of Congress. In the speech Goldberg writes sections on foreign policy, which Johnson calls him later that day to tell him how well the

Goldberg sections were received.44 Johnson suggested that his talents could be better utilized in foreign policy and that other positions besides the Court were better ladders to the Vice

Presidency, Johnson quickly lured him off the Court to appoint him the U.S. Permanent

Representative to the United Nations. Through this position Goldberg goes from a junior

44 President Johnson phone conversation with Arthur Goldberg on Nov 27, 1963 (K6311.03) http://millercenter.org/presidentialrecordings/lbj-k6311.03-36

!29 member of the Court to a key foreign policy advisor and actor for the new President. More importantly, this move opened up a spot for LBJ’s ultimate goal, a seat on the Supreme Court for his close friend, the prominent lawyer Abe Fortas.

Justice Fortas provides one of the most compelling cases in this study, the rise and fall of his career also point to a very significant moment for the overall trend of relationships between presidents and justices. As seen so far it has been almost universally accepted that a president and justice would or could have a longstanding friendship and connection prior to appointment, this norm however was taken a step too far with Justice Fortas, in the end drastically challenging the notion that a justice and president having a close relationship is not only expected but seen as benign. Justice Fortas’s relationship with President Johnson dates back to a crucial moment in

Johnson’s run for Congress in Texas where Fortas found a way in which votes cast by dead citizens could pass as legal.45 From this moment on Johnson began to trust Fortas and their relationship grew as Johnson seemed to put more and more trust in his friend. This meant that when he was eventually elected to the Senate, Fortas started approving language for public statements and eventually became a key speech writer and advisor for the rising politician.46

Once he took the oath of office, Johnson’s reliance on Fortas only grew. In the first week of his

Presidency, Johnson asks many people to help him draft his first address to Congress. With each speechwriter, including Justice Goldberg. Once he reviews the many drafts from prominent law makers all thinking they are writing the only draft, Johnson picks his favorite sections and gives them to his soon to be Vice President Hubert Humphrey and his soon to be Justice Abe Fortas.

45 Murphy, Bruce Allen. 1988. Fortas: The Rise and Ruin of a Supreme Court Justice. New York: W. Morrow. p. 91 46 Murphy p. 128

!30 Fortas and Humphrey spent the night before the speech writing until two in the morning to script what becomes an important and historic presidential moment. Fortas’ role as chief advisor continues in many other instances that mirror this one. In fact, many close aides say that especially at the beginning of his presidency all major decisions were to be approved by Abe

Fortas. Fortas is so burdened by unofficial work from the President that he essentially stops taking cases as a lawyer, but did not stop using his role to benefit his already existing clients.47

Fortas in fact seemed happy with his unofficial role helping to run the country and when offered a spot on the Supreme Court originally turned it down.48

President Johnson used relationships to fuel his masterful political plans, and looking at the events of his presidency it is clear that a main goal of his was to put Abe Fortas on the

Supreme Court, whether he wanted it or not. After orchestrating Justice Goldberg’s transition to

Ambassador, President Johnson goes to his top lawyer and most loyal friend to offer him a seat on the most prestigious bench in the country. When Fortas declined the offer, he is summoned to the White House where he met with Johnson in the Oval Office who told him, I am having a press conference to announce you as my nominee for the open seat on the Court, you have two options you can stay in my office or come to your Press Conference.49 In one of the best examples of his leadership style, the President never asked Fortas if he wanted this position, knowing his answer, but instead insisted that he will have this position.

While unorthodox in his approach to creating an opening for his friend and then ignoring

Fortas’ desire not to nominate him, this episode does not yet explain how their relationship

47 Murphy p. 129 48 Abraham. p. 224 49 Murphy p. 129

!31 would forever change the appointment process and relationship between these two branches of government. The more surprising facts of this episode which later became a presidential scandal, are that at least for this nomination he was a generally agreed upon choice and none of the players involved were unhappy. Justice Goldberg while forced out of office stating he would have liked to stay longer, gained more access to the President and became a key foreign policy advisor and actor. Fortas himself was lauded as such a good fit for the Court that when he is nominated for Chief Justice later, many of the other Justices applaud this nomination. For example, Justice William O. Douglas wrote the President saying “I hope you make Abe our new chief. He’s be superb.”50 The scandalous piece of their relationship went beyond putting a old friend on the Court, Lincoln and others had shown this was not an end all, however the real scandal was the fact that Johnson and Fortas still failed to see the boundaries created by his appointment to the Branch.

Naming a close friend and advisor to the Court was perfectly reasonable constitutional move, and in fact is usually the assumed move of a president.51 This was one of the many reasons why Abe Fortas, especially in the 1960s was not a surprising or unethical nominee. In terms of presidential power theory, it is easy to see why a President would name someone they know intimately to a position that often becomes one of the President’s biggest legacies. The problem here is not the relationship but the nature of it. While the Constitution does not lay out the boundaries that will define the separation of powers between the branches of government, just the idea of a separation. Precedent starting with John Jay shows that a relationship does not

50 William O Douglas to the President, White House Famous Names, William O Douglas, WHCF, LBJ Library 51 Within days of Justice Scalia’s death people who were naming possible Obama nominees often cited his Attorney General Loretta Lynch.

!32 need to be destroyed or ignored, but John Jay, a frequent visitor of Washington’s, draws the line at publicly shaping the President’s policy decisions while on the bench. This is a line that Fortas crosses many times and more egregiously.

Even once he is named to the Court, Fortas continued to be a frequent guest at the White

House and was scattered over the President’s call sheet. It was not uncommon for him to be seen many times a week and even multiple times a day on the Presidents call sheet and it was rare to find an event or meeting at the White House that includes another Justice where Fortas was not present.52 Listening to phone calls between Fortas and Johnson sound less like a President speaking with a Justice and more like the President talking with his Chief of Staff. On January 26

1966, for example, just months after assuming his spot on the Court, the President and Justice

Fortas discuss intricate details of his Vietnam Strategy.53At no point in this call do they discuss the legality of this or any cases before the Supreme Court. To some this may point to the

President and Justice trying to avoid any issues corruption having the President interfere with his position as a Justice. Instead, it comes off as the Justice ignoring his responsibilities of his new job and failing to give up the power he had before his appointment, going beyond the boundaries of his appointment. Justice Fortas can be seen doing many things other Justices had done through their appointments and relationships with presidents before, like suggesting people for posts throughout the Government, similar to how Justice Frankfurter filled the New Deal

Administrations for Roosevelt. However, the way it was discussed with Fortas in the documents, suggests that he knew more than a casual advisor, or even most close advisors. In a note for the

52Information pertaining to the common interactions between the President and Justice were gathered by reading the daily dairy interaction cards, sorted by names of Political Elite’s in the LBJ Library Archives. 53Abe Fortas phone conversation with President Johnson on Jan 26, 1966 (WH6601.11) http:// millercenter.org/presidentialrecordings/lbj-wh6601.11-9535

!33 President left by an aide he was advised by his Justice, “Justice Fortas called to leave the following note for you in connection with the Fred Benson Matter: Might consider George

Edwards who is 53 years old— a Judge of the US Court of Appeals for the 6th Circuit, appoint in

1963 I think by Kennedy.”54

One of the best, often over looked example of their relationship failing to know boundaries comes in the form of a phone call between the President and his soon to be nominee for the highest Court in the land.55 While there are no official requirements to be a Justice, one that is often mentioned for all political offices and especially the position of judge is that one most be of exemplary moral character. The following phone call shows a man in power who believed that he and the President can do no wrong. On the night of March 13, 1964 Abe Fortas phoned the President to inform him that he was out dancing and had met some girls, he then encouraged the President to join them. Fortas said “I’m looking at a very beautiful lady in Red, and we’ve decided that you should come dancing.” To which the President laughed and informed him that he was very busy, only to hear his next pick for the Supreme Court reply with “there is nothing more important than this woman.”56 The President then preceded to talk with the woman who still tried to convince him to sneak off from the White House for a night of fun.

Beyond the inappropriate behavior of the President’s closest advisor and friend encouraging him to join in his affair and sneak off from his duties at the White House, the phone call was made even more alarming when the woman identifies herself as Charlotte Brooks. Mrs. Brooks was the

54 Memo, Secretary (MJDR) to the President, 8/7/67 Confidential File Box 34, LBJ Library. 55 Noted as overlooked because this conversation was not found in any of the existing literature used and searched while researching. 56 President Johnson phone conversation with Abe Fortas on Mar 13, 1964 (WH6403.10) http:// millercenter.org/presidentialrecordings/lbj-wh6403.10-2507

!34 wife of a Texas Congressman Jack Brooks, who would later go on to sit on the House Committee on the Judiciary. While this phone call only suggested Fortas had an affair with the wife of a

Congressman and that he tried to encourage the President to do the same, it is very illuminating considering the fact that he would soon still be chosen as a Supreme Court Justice.

Though this incident occurred before his nomination, Fortas continued this behavior while a justice. While on the Court as seen above he not only continued to serve as the

President’s senior advisor but also his personal lawyer. Justice Fortas’ acts continued to defy the norm when during the 1967 Race Riots in Detroit he temporarily moved into the White House in order to advise the President. The folly of this relationship came down to the lack of boundaries seen at many points, and the fact that their close friendship and the debt Johnson felt he owed to

Fortas blinded him from the unethical behavior of his friend.

Towards the end of his Presidency, Chief Justice Earl Warren decided that in order to secure a future court that would uphold his legacy he would step down and let President Johnson appoint a new Chief. While Earl Warren alerted the President on June 13, 1968 that he was ready to step aside at “at your leisure.”57 President Johnson wasted no time announcing his choice for

Chief. Johnson chose his friend, advisor, lawyer, and justice, Fortas. This doomed Johnson and

Fortas for the rest of their careers. As soon as the nomination battle began, Fortas’ financial deals that continued to pay him while on the Bench from previous clients as well as his past dealings with Johnson became clearer and clearer, to the point that he was forced to resign completely from the Court or face impeachment proceedings.58 This story followed the rise and fall of a

57 Abraham p. 227 58 Abraham p. 227

!35 legal mind that everyone agreed was right for the Court, a President staying true to power theory and appointing someone he could trust with his legacy, the downfall was the blindness to unethical behavior that resulted from their intimate relationship.

Another example of Johnson promoting from within is that of Thurgood Marshall.

Marshall, the brilliant attorney who had won many civil rights victories for the African American

Community as one of the key strategists and lawyers behind the NAACP Legal Defense branch.

Marshall had already argued in front of the Court many times and was one of the most prominent

African American lawyers, if not the most. Johnson brilliantly aligns himself with Marshall and cultivates a relationship with him over time that eventually led to Marshall becoming the first

African American Justice on the U.S. Supreme Court. While their relationship grew increasingly close, Marshall was still among the most obvious appointments in Supreme Court history. As the time had come to break the all white history of the Court, there was no other person alive who would better fit that position. Some even said at the time that beyond being African American he was the single most qualified person alive, and that few others had done more for the cause of equality. Johnson will forever be remembered as the President who nominated Marshall because of the relationship that he forged through meetings, phone calls, and other appointments leading to this historic moment. On July 7, 1965, the President called Thurgood Marshall and offered him the position of Solicitor General. In the conversation Johnson hinted that this position could be a stepping stone to the Supreme Court. Johnson added the caveat that he hated to tease

Marshall like this and did not want to.59 He then further built their relationship relying on his advice as the Solicitor General often bringing him to the White House for meetings with Civil

59 President Johnson phone conversation with Thurgood Marshall on Jul 07, 1965 (WH6507.01) http://millercenter.org/presidentialrecordings/lbj-wh6507.01-8307

!36 Rights leaders and asking his counsel on other appointments. During a phone call in January

1966, Johnson solicited his advice on individuals for other government posts, while he also hinted that he wanted to appoint Marshall to the Court.60 When he eventually had an opening on the Court, Marshall was at this time not only the obvious choice but also fit the bill of a close ally, something that seemed to be required for a high level appointment from President Johnson.

After President Johnson’s Fortas faux-pas, the nomination of a close personal friend became a near anomaly and when attempted often met with scorn. But Fortas does not totally disprove the positives of nominating close friends. The lesson from this is that even a President can ignore reality when it comes to friends. This shows not that friends of the President should be rejected outright from the Court but that their friendship should be analyzed. If the friendship will not allow them to uphold separation of powers, just as Johnson and Fortas saw nothing improper about his continued role as an advisor, then the nomination is an unethical one, but when the relationship simply can justify the nomination as deserving and shows knowledge of the nominee’s believes and character, it should not be discouraged. Because of President

Johnson’s unending desire to appoint Fortas as Chief Justice, he left office with two open spots on the Court including the Chief Justiceship.

Chapter 8. Richard Nixon Richard Nixon’s relationship with the Supreme Court is an incredibly telling one that explains and plays out many trends that represent previous adherence to theories explored in this research and provides examples of how the theory will shift in the post-Johnson era. President

Nixon was given 4 nominees throughout his time as President, including two openings that were

60 President Johnson phone conversation with Thurgood Marshall on Jan 03, 1966 (WH6601.01) http://millercenter.org/presidentialrecordings/lbj-wh6601.01-9403

!37 known at the beginning of his Presidency. Nixon’s desire for his judicial appointments was no secret as he ran one of the most vocal presidential campaigns in American history in reference to judicial and especially Supreme Court appointments.61 The future President, driven mad by decisions made by the Warren Court, much like the President who forever regretted nominating

Chief Justice Warren, rallied the silent majority by making it clear what his Supreme Court would do.

Nixon’s repeatedly stated criteria were to select “strict constructionists” who would see “their duty as interpreting and not making law”; who would follow a “properly conservative” course of judging that would, in particular, protect society’s “peace forces” against the “criminal forces”; who would “see themselves as caretakers of the Constitution and servants of the people, not super legislators with a free hand to impose their social and political viewpoints upon the American people.”62 After running on a platform against in his view the liberal activist Warren Court, he is presented with a gift that any President would dream of having, two nominations directly after a landslide victory with plenty of political capital to spend. Nixon’s dream scenario virtually ends here.

President Nixon’s attitude toward personal friendships with Supreme Court Justices and nominees plays out in ways that confirm previous theories and that respond directly to the

Johnson Fortas Scandal. In direct response to the overly personal connections between his predecessor and his choice for the Chief Justice, President Nixon called the selection of Chief

Justice Warren Earl Burger “the most personal choice of [my] Presidency to date.”63 Interestingly enough he then made this personal decision by restricting personal connections. President Nixon

61 It will be interesting to see that if the death of Justice Antonin Scalia right in the heat of Primary Season will create a situation where the Supreme Court plays as prominent a role in the 2016 Presidential Campaign as it did when Nixon ardently ran against specific decisions and Justices of the Warren Court. 62 Abraham p. 235 63 Abraham p. 237

!38 learning from precedent and creating an extreme version of the future norms, rules out “personal and political friends.”64 To further prove himself as the antithesis of Johnson-Fortas, he insisted on not clearing his nominee with any political leaders and in the most extreme of his measures even refuses to meet with his nominee before announcing the nomination. In these decisions it is clear that President Nixon was truly disgraced by the previous Supreme Court decisions and how they were made. President Nixon here runs from Presidential power theory and overcorrects the mistakes of his predecessors. In fact, even if a President were trying to prove their disconnection from a particular nominee, the public would understand the need to meet with the nominee face to face. When someone applies for a job with no obvious connections to his future employer, no one screams nepotism after the person comes in for an interview, this comes off just as Nixon’s paranoid actions that become even more clear after the Watergate scandal. This move also proves the benefit of personal relationships, as Burger goes on to be a Chief Justice who in many ways carries on the legacies of the Warren Court, rather than striking them down as President Nixon had hoped. One wonders, if the President had chosen someone he was more familiar with if that would have yielded a different result. Much like Warren his record to that point suggested that

Burger would most likely become the chief Nixon was looking for.

Nixon’s selection of Chief Justice Burger in many ways is not an act of power but a move to protect his power. It was a move that played out as extremely reactionary, not only was he extremely careful about the choice of Burger, but Burger’s nomination was confirmed easily. He was voted out of the Democratically controlled Judiciary committee after being the only witness to testify. After being voted out of committee 13-0 in just an hour and a half, mere days later he

64 Louisville Courier Journal, May 23, 1969, p A1

!39 was confirmed with a 74 to 3 vote. 23 were absent or did not record a vote and the three Senators voting against did not do so for lack of qualifications on the part of the nominee.65

Not all of President Nixon’s appointments had an easy confirmation and not all of his appointments represented clearly that Nixon had really learned anything from the unsuccessful

Fortas promotion. In fact his first choice nominee to replace Fortas, Judge Clement Haynsworth had a variety of problematic financial disclosures. Nixon’s control of the country after an election that rang in a clear displeasure with the previous lineage of Presidents failed to pull the nomination of his first choice Justice resulting in a 55 to 45 vote in the Senate that represented the first failed nomination that received a full vote in the Senate since Herbert Hoovers nomination of John J. Parker that was rejected by the Senate. In a job where political capital, and with it, ability to implement one’s agenda is dependent not only on public approval but public confidence, having to rescind a political nomination is already seen as a large enough blow, let alone watching your embattled nominee fail in vote on the Senate floor. Nixon did not blame himself or his own popularity or power at all instead he claimed this embarrassing episode was the result of “anti-Southern, anti-conservative, and anti-strict-constructionist” sentiments.66

Again, not learning from previous political defeats, President Nixon declared that he would nominate another Southern strict-constructionist conservative Judge.

Nixon’s next choice was a spiteful one, and one that scholars looking back today often cite as being aimed at teaching the Senate a lesson. In this decision and moment he acts as if he has

65 Eugene J McCarthy (D-MN), For what he termed “somewhat personal and political” reasons (apparently Burger, when he was Minnesota State Republican chairman in 1952, had opposed McCarthy reelection campaign for the House); Gaylord Nelson (D-Wis), who said he did not know enough about the nominee and had been “mistaken” when he voted to confirm Fortas; and Steven M young (D-OH), who claimed that the committee had not hear from an opposition witness. p. 237 Abraham 66 Abraham p. 11

!40 the persuasive power of President Johnson without actually following through with any of the intimidating actions just relying on the respect for the Office itself being enough to bring his nomination to fruition, clearly not learning from Judge Haynsworth. While in terms of action,

President Johnson seemed to be a President drunk with power believing that he could do no wrong and pass any nominee or piece of his agenda without a hitch, Nixon stupidly ignored red flags and protocol. In a vetting process by the FBI and White House that at best has been described as superficial, Nixon nominated Judge G Harold Carswell. A simple search into

Carswell would have resulted in the discovery of his White Supremacist comments, although,

Justice Black was able to overcome that past and sit on the Court, and involvement in illegal use of Federal funds to create a segregated country club while US Attorney in Florida.67 All in all in the world of the 24 hour news cycle, this name would not even make the long list, let alone by nominated. In the post Fortas world and just after a failed confirmation, a President should not be touching a nominee this toxic and yet Nixon arrogantly insisted he proceed. This decision lead to a statement that should never be said about a presidential appointment on the Senate floor, not because of respect, but because the President should have the forethought to nominate someone so competent that this statement can never be read, “Even if he is mediocre there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can’t have all Brandeises, Cardozos, and Frankfurters, and stuff like that there.”68 This statement by the President’s floor manager of the nomination was met with support in the form of another statement from a Democratic Senator from Louisiana,

67 Abraham p. 11 68 Congressional Record, 91st Cong., 2nd sess., vo. 116, 1970, p 7498.

!41 Does it not seem to the Senator that we have had enough of those upside down corkscrew thinkers? Would it not appear that it might be well to take a B Student or a C Student who was able to think straight, compared to one of those A Students who are capable of kind of thinking that winds up getting us a 100- percent increase in crime in this country?69

These celebrations of mediocrity for one of the most intellectual positions available in the U.S.

Government, seemed to come from the popular political sentiment that a common average man is the most electable especially to represent the average American. What the President’s supporters failed to realize is that the Supreme Court is not about popular representation, it is the least democratic branch. This was not an accident, this was a position as designed in the

Constitution and practiced throughout American history until this point for the brightest legal thinkers and most practiced jurists and statesmen. Not surprisingly, President Nixon’s unintelligent choice failed, 51 to 45, his second failed nominee in less than five months after all previous presidents had been able to at least withdraw their nominees since the 1930s. To his credit, Nixon admits defeat at this point giving a speech of consolation declaring his lack of power in this arena.70

After two bitter defeats, he turns to rely on relationships, not necessarily his but those of the sitting Justices. Much as other Chief Justices were able to dictate their fellow Justices nominations, Burger goes to his appointing President with a solution. Burger suggested his childhood friend from Minnesota Harry Blackmun, a northern conservative judge who was an easy win for a defeated President. With a quick quiet meeting with the President and the Attorney

69 Congressional Record, 91st Cong., 2nd sess., vo. 116, 1970, p 7487 70 After the Senate's action yesterday in rejecting Judge Carswell, I have reluctantly concluded that it is not possible to get confirmation for the judge on the Supreme Court of any man who believes in the strict construction of the Constitution as I do, if he happens to come from the South. New York Times, April 10, 1970 p 1.

!42 General, Blackmun was given the green light. Blackmun and Burger go on to be hailed as the

“Minnesota Twins” as the two form a consistent conservative voting block, just as Nixon had envisioned. Unfortunately for Nixon, Blackmun not only grew to resent this representation of his believes and saw his ideology shift during his tenure. This shift led to his authoring of the majority opinion in Roe v. Wade, an opinion President Nixon did not appoint him to write.

The issue of Justice Blackmun’s change of heart brings up an interesting dilemma, while it is hard to predict gradual changes of thought, one of the benefits of appointing someone who has a longstanding relationship with the President is that the President is more likely guaranteed a vote that will be a lasting legacy they approve of. In the absence of a relationship with

Blackmun, Nixon relies on the advice of his Chief Justice who had a longstanding relationship with Blackmun. This however did not translate to a promised vote especially considering Nixon publicly had no close relationship with Burger prior to his appointment. Nixon was instead forced to take a chance on a man’s record and was ultimately left unhappy with the legacy of

Justice Blackman. In the 1970-71 term Justice Blackmon voted with the Chief Justice 109 of 113 cases and aligned himself with Justice Brennan, the Court’s leading liberal, only 13 percent of the time. After he began to scorn the constant labeling in the press as an echo of his old friend

Burger’s voice and as his legal views began to shift, his voting changed drastically. His voting record post his Roe decision switched from 13 percent with the liberal wing of the Court to 80 plus percent.71 Here relationships end up having the opposite effect from President Nixon’s hopes, running from his close connections to the Chief, Blackmun’s vote helps continue the decisions of the Warren Court rather than reversing it. If this was his reaction to being painted as

71Abraham p. 243

!43 just an echo for Burger, one is left to ask if he would have run more quickly or possibly even more dramatically had his relationship been with the President.

After the public failures Nixon endured through his first few appointments, the President turned to another line of presidential strategy, Kernel’s Going Public. The President gave the

American Bar Association a list of 6 potential nominees. The six included Judge Mildred Lillie, a

California Appeals Court Judge, Herschel Friday, a close friend of the Attorney General, Sylvia

Bacon, who had only been a judge for seven months, Senator Robert Byrd, a former KKK recruiter who had gone to night law school and hadn't yet been admitted to the bar, and Charles

Clark and Paul Roney, who combined had three years experience as judges. Interestingly enough this list included 2 women, Judge Mildred Lillie and Judge Sylvia Bacon, Judge Lillie was the

President’s top choice for the Court.72 This list is also interesting especially being the list given to the Bar association to be inevitably leaked to the press, as it is clear who Nixon’s real favorites were. The two first names on his list including the first woman to be atop a short list for Justice, were undeniably more qualified and passable than the rest. The use of going public here was used very wisely to convince the public that the choices the President would eventually make were the choices they would make themselves, making the President look smarter and more in tune with popular opinion. This list was not well received as the Bar Association and the public call the list a “relentless pursuit of mediocrity.”73 Whether or not this list was a ploy to gain public favor or not, the President heard the calls for better names and answered with names that were much more qualified. The first was Lewis Powell, a former President of the ABA and a

72 These two women, not named to the Court at this time, also appear on Regan’s short list when he decides to nominate a woman to the Bench, but the suggestion of Sandra Day O’Connor by the Chief Justice replaces them and wins out. 73 Abraham p 15

!44 southern strict constructionist. The second name he put forward was more controversial and a lower level member of his administration, the eventual Chief Justice Rehnquist, who at the time was an Assistant Attorney General at the Justice Department.74

President Nixon learned his lessons and in the wake of the Fortas scandal was denied any appointments with clear relationships that tie the nominees back to him. He further failed in trying to lower the elitist nature of the Court, in hopes of achieving his campaign promises of common sense law and order judges, rather than justices who will ponder the many meanings and interpretations of the Constitution. After the clear shift in the nomination process after

President Johnson, Nixon then normalized failing nominations and floating publicly many names before arriving at his eventual nominees. But a question remains if this new model of publicly testing names and ending up with relatively unknown legal scholars is the better one, or the right one. In the case of President Nixon’s selections, it is clear that through this process the country was given measurably better justices than the President would have appointed on his own. The rejection of many unqualified cronies resulted in two well respected Chief Justices, Burger and

Rehnquist, Blackmun who is able to follow a Louis Brandeis model of independence, and Justice

Powell, who while not as historically notable certainly came more qualified and distinguished than the infamous list of the Nixon Six. Nixon is the first President to nominate justices in the post-Johnson era and saw firsthand how much the process had changed, the country in turn gained notably different justices than Nixon would have nominated if he had beat Kennedy in

1960.

74 His is the first nomination the ACLU publicly fights

!45 III. Justices Chapter 9. William Howard Taft This research would not be complete without a discussion of William Howard Taft. Taft occupies the unique position of having served both as a President and Chief Justice of the

Supreme Court. In fact Taft is the only president to serve on the Supreme Court, although as seen here, many justices have tried to run for president either before their time on the Court or even from the Bench.75 The more interesting thing about Taft, and in many ways what sets him apart, is the fact that he went from president to justice and that in his mind this was not a demotion. It was widely known at the time, especially among political elites that President Taft longed for the

Chief Justiceship and he makes appointments with his likelihood of someday being Chief Justice in mind. President Taft also serves as an interesting focal point as even when he was no longer president and especially once he is Chief Justice, he commands great power and influence over the makeup of the Court. Because of this, some have even suggested that he had as much influence over the Court and was able to essentially select as many justices as Washington.76

Overall, Taft’s time as President and time on the Court were defined by the importance of relationships with other justices.

Like many other presidents, Taft had important criteria for picking justices. He took these appointments especially seriously as he both had been a judge previously, and argued as a lawyer in front of the highest Court, as well as he envisioned himself one day on the Court, making these selections even more personal. Interestingly enough, the fact that he took personal

75 In modern politics this is almost unthinkable, although President Obama would seem to have the correct credentials as a former constitutional law professor, however given the current state of politics this is probably extremely unlikely. 76 Abraham p. 131

!46 relationships so seriously and prioritized other aspects of the future justice, he had less interest in their nominal political affiliations His criteria included a judge of character, that he knew them or knew of them, and all except Hughes had considerable judicial experience.77 Since his focus was on their experience and relationship to him, political affiliation was less of a concern, as in his mind he just had to be able to work with them and more importantly they had to share his judicial philosophy. Taft wanted justices who would be the opposite of Learned Hand, Brandeis, and Cardozo who he believed were “destroyers of the Constitution.”78 Interestingly enough, as someone who highly regarded the importance of an existing relationship between the President and his Justices, Taft also strongly believed in the separation of powers, which could explain the reason all of his friends on the court did not always vote the way he would have liked. To explain this odd passion for both a relationship and separation of powers it is best to look at his career prior to the Presidency. As an accomplished lawyer and judge, Taft understood and even preferred the Judiciary to the Executive, he knew the freedom needed to have a strong and successful legal system.

When his first opportunity to appoint a justice arose in 1909, Taft was quick to find someone who met all of his criteria. Horace H. Lurton, who was a close friend who served along side him as a Judge for eight years on what was known as the “Learned Sixth.”79 Taft had previously advocated to President Teddy Roosevelt to appoint his friend to the Court, but was blocked by Senator Henry Cabot Lodge, due to Lurton’s political affiliation as a Tennessee

Democrat who “had voted against the government in every case involving the interstate

77 Abraham p.131 78 Abraham p.131 79 Abraham p.131

!47 commerce clause.”80 This did not matter to Roosevelt’s hand picked Republican successor because politically, philosophically, and socially Taft liked and knew Lurton. Lurton would never get to serve on the highest court with his friend from the appeals circuit as he died only four and a half years after taking office, however to his credit, wrote 87 opinions in that short span, proving him a worthy appointment by an old friend.

While Charles Evans Hughes will be discussed at length in his own section, it is interesting to see the story from Taft’s perspective, especially the continued gamesmanship of the

Chief Justice position. Taft wanted Hughes on the Court and teased him with the potential that the Chief spot would open soon and in his words, had it been open at the time he would have put

Hughes there. When it does open up shortly after appointing Hughes, Taft goes back on his word.

His reasoning was Hughes was too young and healthy. Taft dreamed of holding the Chief

Justiceship and many speculated that if he could he would appoint himself and resign the

Presidency. However, given that this was not possible he knew promoting Hughes would most likely mean he would never have the opportunity for this position after his Presidency, so he went back on his deal.81 In the end, after reaching the position himself, Taft urged Hughes to return to the Court as his successor.

In nominating his actual choice for the Chief Justice, Taft creates new precedent, promoting for the first time one of the sitting justices. In doing so Taft of course surprised everyone by not promoting Hughes even leading to the New York Times Headline “White, Not

80 Abraham p. 131 81 Abraham p.134

!48 Hughes, For Chief Justice.”82 In selecting White, makes an incredible selection for his own ambition as the safe promotion passes away May 19 1921, shortly after Wilson, who would never appoint Taft, leaves office. In this selection, while choosing someone with a much more proven conservative record, Taft selected a justice with very Brandeisian characteristics as

Edward Douglass White’s time as both an associate and Chief Justice are often described as following a cautiously independent and evaluative approach to the law. Taft even remarkably declares his own ambition and sadness while appointing White saying,

There is nothing I would have loved more than being chief Justice of the United States… I cannot help seeing irony in the fact that I, who desired that office so much should now be signing the commission of another man… It seems strange that one place in the government which I would have to liked to fill myself I am forced to give to another.83

This speaks volumes about President Taft’s selection. This is one of the only times where not only did the nominees record and relationship with the president but the ability for the president to one day admittedly be able to replace him come into play. Furthermore, this has to be one of the only times in American history where the President appoints someone to any position expressing not only jealously but sadness that they themselves can not fill such a position. But this shows incredibly well why relationships were more important to Taft than political affiliation or really anything else. Because he desperately hoped and dreamed that one day he would serve on the Court with all or most of his selections.

82The New York Times,. (1912). WHITE, NOT HUGHES, FOR CHIEF JUSTICE, p. 1. Retrieved from http://query.nytimes.com/gst/abstract.html?res=9F0CE2DC1638E333A25751C1A9649D946196D6CF# 83 As edited in Abraham 135, Originally found in Alpheus Thomas Mason, William Howard Taft: Chief Justice (New York: Simon and Schuster, 1965) p 34

!49 In promoting for the first time a sitting justice, Taft also created another modern phenomena, creating a new vacancy on the bench while filling a separate vacancy. Giving Taft yet another opportunity to shape his beloved fantasy. In this case Taft did appoint a man who eventually he would describe as a favorite colleague of his when the two served together on the

Court. Justice Van DeVanter becomes a famous member of the Court’s Four Horsemen who go on to oppose New Deal Legislation and play a key role in Franklin Roosevelt’s struggles and battles with the Supreme Court, a role Taft would be proud to have appointed a justice to fill. In fact, as his time on the Court goes on he becomes closer and closer with his appointing president and eventual Chief Justice as Taft describes him as the best justice on the Court when he is appointed as Chief. This really shows the closeness of their relationship as many scholars today and even then clarify Devanter as a “failure.”84 This designation partially comes from his tendency to vote along with his colleague Justice Sutherland at any opportunity he could and the fact that he wrote fewer opinions than any other Justice between 1843 and 1953.

Taft’s next selection again emphasizes the importance of relationships over even party politics as Taft nominated another Southern Democrat, Joseph Rucker Lamar. While Lamar was not close personally with Taft he was close with Taft’s close friend and earlier appointee Lurton.

Trusting the friendship of his ally from the Sixth Circuit, Taft also chose Lamar as he met all of

Taft’s other criteria, “his judicial and legislate record had manifested the conservatism and ideological bent with which Taft was comfortable; his ‘real politics’ were eminently

84 Abraham p. 136

!50 acceptable.”85 He also makes this selection to please other Southern Democrats, in case his previous selections of non republicans, and southern democrats was not enough.

Taft’s final selection shows his use of the Court, just as many other presidents have, for more political rather than legal reasons. Fearing New Jersey would soon become a battleground state for Republican delegates as Theadore Roosevelt prepared to run against his former chosen successor, Taft looked to a considerably established New Jersey Republican, Mahlon Pitney who had eleven years experience on New Jersey Courts, had been a US Congressman from New

Jersey, as well as the Republican floor leader and President in the New Jersey Senate. Later as

Chief Justice Taft publicly called his final selection to the Court a “weak member” to whom he could “not assign cases”86 This is not as surprising considering he did not put as much into this selection as he had all his others and mostly chose it for political convenience, showing that even within one President these choices can be deeply personal and merely political.

Once he was able to get President Harding to appoint him to the Court in 1921, Chief

Justice Taft went from having control over the selections to the Court to having a deeply personal stake in those selections and therefore becomes one of the many Chief Justices (and sometimes associate justices) who has a great deal of influence over the president’s selection of other nominees. “To Taft, the appointment was his greatest honor; he wrote: ‘I don't remember that I ever was President.’”87 Taft’s influence over the relatively weak President Harding did not stop here. “After virtually appointing himself— with divine assistance— Chief Justice in 1921, Taft made himself instantly available as an adviser on nominations— and not only judicial

85 Abraham p. 136 86 Mason, Alpheus Thomas. 1964. William Howard Taft: Chief Justice. London: Oldbourne. p 213 87 https://www.whitehouse.gov/1600/presidents/williamhowardtaft

!51 nominations.”88 His strategy here was to overload President Harding with suggestions and recommendations for potential nominees the moment a position became open and while this did not always yield his first choice candidates joining him on the Court, it was however successful at blocking nominees who would join in his words the “dangerous twosome,” Brandeis and

Holmes. Blocking this twosome became a passion of his, leading him to desire even more influence over the president when it came to Supreme Court nominees. Taft explained his need for power by saying “I must stay on the Court in order to prevent the Bolsheviki from getting control.”89 This passion that came as Chief Justice, as noted earlier did not come from nowhere, and did not come without clever maneuvering by Former President Taft. Taft even referred to the

Chief Justiceship as “next to my wife and children… the nearest thing to my heart in life.”90 91

For this position, Taft ran a campaign lobbying for the position almost immediately after his fellow Ohioan Harding was elected. In a note to the new President he even reminded him and emphasized that his interest “lay solely in the post of the Chief Justice.”92 In fact, to reach this post he had gotten the Chief Justice he appointed to agree to hold out for a Republican President, who would likely appoint Taft. Wielding his relationship with a man he put on the Court, Taft got

Chief Justice White to remain on the Court, half deaf and blind, finally dying after writing over

700 opinions. Taft masterfully planned this appointment even as President and further proved the

88 Abraham p. 146 89 Abraham page 146 footnote 68, As quoted in C Herman Pritchett, the Roosevelt Court: A Study in Judicial Politics and Values, 1937-1947 (New York; MacMillan, 1948) p 18 90 Abraham p. 146 91 This is not far off from What Chief Judge Garland said when Obama announced his nomination, although he lobbied and fought much less for this position and said this more to illustrate the honor it was for him to be considered for such a position rather than the realization of a lifelong dream. 92 Mason p 77-78

!52 use of these crucial relationships manipulating his way onto the Court even long after he had left the White House.

Taft should not only be remembered as a President who used relationships wisely to appoint many good Justices, both from the White House and the Bench, but also as someone who valued separation of powers and the role of the Court in American government. Taft took his job very seriously even winning the respect of his “dangerous twosome” and other colleagues who often wrote dissenting opinions.93 He worked harder than most of his colleagues due to his passion for this position, authoring 253 opinions of the Court’s 1,596 during his tenure. He was able to lead the Court masterfully even as it was divided, finding a consensus whenever one existed. Taft represents nearly all sides of the possibilities of relationships between and among justices and presidents and even justices and other justices. Taft should be viewed as not only a revolutionary but also what one can achieve in government through the use of these relationships. Further, while his presidency was not without scandal, as Brandeis proved him not the most honest of presidents,94 it would be hard to say that any of his actions as a result of his relationships with the Court (or while as Chief Justice) were scandalous or unethical. He simply was able to gain immense influence over the government and therefore the country for a decent period of the early 1900s in a position he loved in a political world he excelled in. President and

Chief Justice William Howard Taft today stands out as an outlier and extraordinary case but could also represent one very real model for President Justice relationships guided by friendship and independence.

93 Abraham p.147 94 During the congressional investigation of the Ballinger Affair, Brandeis proved that Taft was golfing rather than reviewing hundreds of pages of documents he claimed to have read.

!53 Chapter 10. Charles Evans Hughes

Charles Evans Hughes’ represents a unique case study as he serves on the Court in two different roles with a significant absence in between them. Furthermore, he came to the Court with major political experience and connections and this continued in his years in between appointments. Hughes represents one of the rare examples of someone using the Court not only as a career endpoint but also a position to further their career. While for most the Court is their final stop in a successful legal or political career, Hughes is able to use his first appointment to the Court to further propel his political success, leaving the Court in 1916 to run for President before eventually becoming the Secretary of State and then later rejoining the Court as Chief

Justice in 1930. While this certainly was an unusual path, at the time it was one that made more sense in context of the political norms. This career also represents many things that do not seem possible in the post-Johnson era. Today it would almost be unthinkable to have a Supreme Court

Justice resign in order to run for President. Furthermore, positions such as Secretary of State and

Governor have become politicized to the point that they would be toxic to hold if someone had aspirations of a spot on the Supreme Court nomination. Being a senior political leader in the party that grants one access to jobs such as Governor of New York, Secretary of State, and even a

Presidential candidate however represent the level of prestige needed at the time in order to be considered for a justiceship as these positions of prestige guaranteed connections to the President that would more often than not facilitate nominations. In fact, that situation is another aspect of his nominations both times that set him apart, being a Justice on the Supreme Court and even

Chief Justice at the point he was nominated were not aspirations of Hughes’. Justice Hughes in many ways defied political norms of the time in his belief that it would be “abhorrent” for a

!54 Justice to take part in Presidential politics but is pressured by his party as the best Candidate and resigns as Justice when he wins his parties nomination in 1916.95 Only a few Justices seem to be in similar situations across history as Charles Evans Hughes, the first Chief Justice John Jay of course leaves to take the same position Hughes fills as Governor of New York and uses the Court as his political launch point. Similarly John Rutledge the second Chief becomes Chief after a short stint away from the Court. While many justices throughout history have lofty political careers before joining the Court, Chief Justice Earl Warren manages to gain the position by backing out of the Presidential primary battle for the Republican nomination. The only other major comparison, is Taft, who as previously discussed was both President and Chief Justice.

Hughes in many ways is the perfect illustration of the different level of possibility that is available to those personally and politically connected to the president. When the Chief

Justiceship opened up one of the under Secretaries of State close to the president came to him and asked, are you interested in being Chief Justice. This is not a conversation that happens at every workplace between two political elites, this is a unique conversation that can only happen realistically between people that are personally connected to the President. In fact, much like when Hughes is asked to pursue anything in his career, he must be convinced and his first response is No.96 In a stunning letter to the soon to be justice, Taft writes Charles Evans Hughes declaring his desire and need to put him on the court.

95 Hughes, Charles Evans, David Joseph Danelski, and Joseph S. Tulchin. 1973. The Autobiographical Notes of Charles Evans Hughes. Cambridge, Mass: Harvard University Press. p. 178 and 181 96 Hughes p.159

!55 I write to you to offer you the position of Justice of the Supreme Court of the United States…. I know the reasons that suggest themselves against your acceptance and I do not minimize them. I believe as strongly as possible that you are likely to be nominated and elected president sometime in your future unless you go upon the Bench or make such associations at the Bar as to prevent. …. The position is for life. the salary is $12,500 and will in a ll probability be increased at the next session to 17,500. The chief justiceship is soon likely to be vacant and I should never regard the practice of not promoting Associate Justices as one to be followed. Though, of course, this suggestion is only that by accepting present position you do not bar yourself from the other, should it fall vacant in my term. …. PS Don’t misunderstand me as to the Chief Justiceship. I mean that if that office were now open, I should offer it to you and it is probable that if it were to become vacant during my term, I should promote you to it; but, of course, conditions change, so that it would not be right for me to say by way of promise, what I would do in the future. Nor, on the other hand, would I have you think that your declination now would prevent my offering you the higher place, should conditions remain as they are.97

Throughout this letter the president did two things: beg and make promises. It is extremely clear that President Taft thought highly of the man he wanted to nominate as he discussed extraordinary potential positions Hughes could have instead of this job, the Presidency or the

Chief Justiceship. This goes to show the benefit of having a working relationship with someone before nominating them for a position such as this. If you know enough about the person, you can flatter them in your recruitment and sweeten the deal for them showing this either as the ultimate compliment or a launching point for future political success. Second, President Taft did a fair amount of making almost promises that he can’t keep but surprisingly are almost true. This letter shows that the successful politically active Hughes to this point would have been slightly concerned about the salary much like the first Chief. The life time appointment, however, would look very enticing with most of the Justice’s jobs to this point in his career came with political

97 Hughes p.159 and 160

!56 term limits or popular discretion involved. President Taft furthermore is very much upfront with

Hughes about wanting him as Chief and suggests even that if the slot were open today he would appoint him Chief, over his otherwise policy of not elevating from the Bench.

In his response Hughes seems hesitant but excited as he explained his concern that he may not be suited for the position but would take it on with so much passion that he would hope to live up to the expectations and demands of the job. He further went on to write an interesting response to the continued hinting about the role of Chief Justice, “Your expressions regarding the

Chief Justiceship are understood and most warmly appreciated. You properly reserve entire freedom with respect to this and i accept the offer you now make without wishing you to feel committed in the slightest degree.”98 This comment seems strange from a purely greedy political vantage, had Charles Evans Hughes been simply focused on power he would have accepted this post and reminded President Taft that if such a day ever came in his term when the Chief vacates his position, he has all but guaranteed this to Hughes and will have no other choice. Instead

Hughes here shows his character and possibly reveals some of the qualities about himself that lead him to later actually becoming Chief. His respect here for the President as a politician and leader is shown as he gracefully accepts this office and shows that he is here to serve the people regardless of future opinion.

In his autobiography Hughes takes two pages to discuss his views on the ideal relationships between the President and the Judicial Branch, more specifically here he focuses on the issue of whether or not Justices should be appointed to extra judicial positions, such as the one he was appointed to by Taft. His opinion on this is mixed but extremely telling. Hughes for

98 Hughes p.160

!57 the most part is against these positions, largely based on his own experience and his experience with the work of the Court, however he does draw exceptions in what appears to be the most prominent extra judicial appointment, international arbitration. Hughes starts his critique by declaring that “The reasons for this practice are obvious. There may be hundred of persons well qualified for an administrative inquiry, but they may not be well known to the country or may have a disqualifying identification with politics or controversies. A Justice of the Supreme Court may be of outstanding qualifications and high in public confidence. Still, I think that the practice is bad.99” Outlining the ease of selecting a Justice, Hughes shows that he understands the value in choosing a Justice, and to the public it is the obvious choice, as they are to be unbiased to a fault.

This explanation also avoids entirely the bigger issue of separation of powers. Most likely as someone who took such appointments, Hughes believes that there is not an inherent conflict of interest or overt ignorance of the dividing principles of the American Democracy. Hughes goes on to discuss the workload of the justices, something he struggled with for a variety of reasons throughout his career but that burdened him to the risk of his own health when he tried to both fulfill his duties on the Court and oversea the inquiry into the Postal service. In the following selection, Hughes explains his biggest quarrel with the practice,

To the extent that the administrative works cuts into judicial time, the Court is deprived of the benefit of Justices Collaboration and sometimes this may result in an evenly divided Court. Again, these administrative commissions bring the Justices into a realm of controversy with which he should not be associated. It is best of the Court and the country that the Justices should strictly limit themselves to their judicial work, and that the dignity, esteem, and indeed aloofness, which attach to them by virtue of their high office as the finial interpreter of legislation and constitutional provisions, should be jealously safeguarded.100

99 Hughes p.166 100 Hughes, p.167

!58 Charles Evans Hughes worried, quiet perceptively, that taking extra judicial appointments would put the justices at risk of entangling them in political disputes that will tarnish the public confidence in the Court. This is a very fascinating almost foreshadow statement to the later issues with Justice Fortas, as he was too close and too involved with the President, the public’s confidence in him was permanently stained. Further, it is interesting to read this statement in a day when controversial cases bring about public discourse that blames specific Justices for unpopular government policies and brings at least the names and opinions of the Justices into contention. Hughes goes on to describe his ideal role of the Justices in the American system, even emphasizing the need for “aloofness” to be an attribute of the perfect Justice, a statement that makes Justice Souter seem ideal. In this description he also creates an implied separation between branches especially when emphasizing the “aloofness” and jobs of interpreting the actions of the other branches. In this picture of a justice he puts the job of the justice exclusively answering constitutional questions on a pedestal.

In the statement, “In saying this I do not criticize the the acceptance by justices of the recent appointments made by President Roosevelt.”101 Hughes puts the burden on the president not too exploit the relationship through calling on the Justices to take positions they cannot turn down. This illuminates the power balance he sees in the relationship between the two figures.

Throughout this the Chief Justice allows for some special commissions which suggests that he believes in a working relationship between the two branches that would put the Justices in consideration for these positions. He also shows that the power dynamic is such that when the

President asks, a Justice is not in the best position to say no. Charles Evans Hughes highlights a

101 Hughes p. 167

!59 series of appointments that he either felt were worthy of the Justices time or that the Justice could not have turned down, including: “After Pearl Harbor, Justice Roberts could not well decline the President’s request to take part in the inquiry as to the causes of that disaster. And

Justice Brynes was especially fitted for the exacting task to which the President summoned him.”102 Hughes however calls out both of these appointments as well as his own as being overly onerous, demanding time that should have been dedicated to duties of the Court. Hughes also raises an interesting issue with these appointments specifically and generally, that they leave the

Court looking as if it has open seats. While he specifically was referring to here was the possibility and rumor that Roosevelt provided many of these appointments in order to try and coax certain justices off of the Court and fill their seats with pro-New Deal judges, it was not a practice without precedent. Chief Justice John Jay used one of his extra judicial appointments as almost a springboard from the Court, although his was out of desire for more work where justices of Hughes’ era already have too much work. While Roosevelt’s alleged plot does not fully succeed, Brynes does eventually leave the Court to follow a number of appointments from the president.

Finally, Hughes comes to his major exception for stealing justices time away from the

Court, international law. The most common reason, as cited by Hughes at least, that the President calls on his justices to serve their country in another respect is dealing with international legal disputes or treaties. Again here Jay serves as the precedent that helps inspire the rule. Speaking more precisely about international arbitration something he was asked to do, as were Chief

Justices White and Taft, Hughes say this calls “for judicial service of the most important

102 Hughes p. 167

!60 description, and when Governments pay a Justice or Chief Justice the compliment of calling upon him to act as arbiter of international dispute, it may be in the interest of peace and international good will that he should accept.”103 After this show of support, Hughes flips his words and while hinting at the Nuremberg Tribunals and future international tribunals being discussed in the years after World War 2, when this book was being written, he says there is too much on the plate of the Justices already and they should not be put in a position to accept. By highlighting the honor bestowed on these judges when the position is offered and then suggesting they already have too much important work to do at home, Hughes again puts pressure on the

President to hold up their end of the relationship and not put a Justice in a position where they must say yes.

Overall, Charles Evans Hughes’ thoughts on the subject are both interesting from a historical perspective and provide illuminating details into the dynamics of these unique relationships. One theme seen throughout this study, hat tis better understood through Hughes is that of the presidential power of pressure. It is easy to find examples of people answering the call of service when asked by the president to take on a position or project they may have been adverse to before, however, that pressure is especially important when it comes to positions picked by the president that are uniquely crucial to government operations and that are lifetime appointments. Hughes like many of the other justices discussed, was not keene to serve as either

Associate Justice or later Chief Justice. As a successful lawyer, politician, and statesmen, Hughes had many opportunities available at the times of his appointments, however as illustrated by both of his appointments Presidential pressure and especially that coming from personal letters and

103 Hughes p. 167

!61 meetings inside the White House, carries an almost irresistible weight. The more surprising and comforting revelation from Charles Evans Hughes’ autobiography and tenure on the Court is that in most cases the weight associated with these gestures wore off while on the Bench. While this paper has found many who could not resist the President’s will while on the Court, first Jay, then

Hughes, and later Warren all seem to value their position in such a way that allows them to stand their ground on the issues. Hughes is able to use his weight and resist the Court packing plans as well as frequently proudly exclaimed his independence from party and president when discussing how he came to decisions in cases.

Through these ends, Hughes is able to highlight some of the best qualities of the

Washington model of a justice, a model that Hughes shows can be ideal. Hughes was able to bring a level of prestige to his positions, he was able to bring strong knowledge of government and legal actions, and he was able to bring working relationships and the tools to build working relationships with many presidents. While it is rare to get a person who has served as Secretary of State, Associate Justice, and has ran for President himself, Hughes shows all of these previous political engagements do not need to serve as disqualifies for the Court but allow him to excel on the bench and fit nicely into working relationships with the President, allowing the President at times to exercise his power of persuasion and resisting it when he felt it was his job to do so.

!62 Chapter 11 Louis D. Brandeis

Louis D. Brandeis was not only the first Jewish Justice of the United States, but in this research has produced the closest to a real example of the ideal Supreme Court Justice, in terms of relationships with presidents. Justice Brandeis serves as the ideal model in a cross branch political relationship due to one of the most fundamental elements of his character: independence. Brandeis was a strong believer in independence as a personal principle from a young age and can be seen throughout his legal career boasting this quality. As a lawyer, this manifested through his ability to remove himself from his duties to his clients, or the parties that approached with him with a problem. He would instead solve cases in a way that benefited both parties, often to the disdain of his clients desires. Because of this he pioneered the field of Pro-

Bono legal work, taking public interest cases free of charge so he could feel unrestrained by either side and solve the problem in mutually beneficial unique fashion. His value of personal independence is a major reason for his success as a justice but does not fully explain his ideal selection as a representation for the ideal model in this study. He fits this because of his relationship with many presidents and justices throughout his career, his ability to advice, befriend, and still vote independently. Louis Brandeis’ path to the Court is directly connected to personal relationships, as he befriends and advises President Wilson, supplanting his spot in

Wilson’s mind as a future member of the Supreme Court. While today remembered as titan of the

Court who redefined the legal field, many often over look the fact that much of Brandeis’ life and much of his expertise were economic. Around the time that he published his economic legal articles collectively known as Other People’s Money the future Jewish Justice began advising the future President Wilson on economic policy. He was instrumental throughout the campaign and

!63 early years of the Wilson Presidency, not as a lawyer or judge but instead as an economic policy advisor and friend of the President.

Brandeis’ relationship with Wilson, and Wilson’s respect for Brandeis is often masked by the independence of his justice’s character. This respect was mutual. After meeting for a few hours during the Wilson campaign for President to discuss economics, the prominent lawyer wrote a mutual friend saying, “It seems to me, that he has all the qualities for an ideal President

— strong, simple, and truthful, able, open-minded, eager to learn and deliberate.”104 From this point Brandeis becomes a key economic advisor even sending urgent telegrams calling for changes to the economic sections of Wilson’s speeches.105 This close relationship advising the candidate on economics lead Wilson to imagine Brandeis as a key player in the administration but not always as a justice. When assembling his first cabinet, President Wilson considered

Brandeis for Secretary of Commerce, until party faithful from Massachusetts urged him to consider a well known New England party leader, if he wanted a New Englander in the

Cabinet.106 This relationship was close enough even that when scandal hit the Wilson campaign in 1916, Brandeis was rumored to have been Wilson’s lawyer shuffling hush money around and then demanding a seat on the Supreme Court in exchange for his silence.107 This of course is far from the truth, but highlights the perceived closeness and trust between Brandeis and Wilson.

The Ballinger-Pinchot affair played a key role in bringing “the people’s lawyer” to national

104 Heckscher, August. 1991. Woodrow Wilson. New York: Scribner. p. 256 105 Heckscher p. 257 106 Daniels, Josephus. 1924. The life of Woodrow Wilson, 1856-1924. Philadelphia: The John C. Winston Company. p. 138 107 Maynard, W. Barksdale. 2008. Woodrow Wilson: Princeton to the Presidency. New Haven: Yale University Press. p. 308-9

!64 prominence and inspiring Wilson to later nominate him to the bench.108 In this episode, Louis

Brandeis represented Louis Glavis before a congressional committee investigating the events surrounding his firing from the General Land Office and other accusations of Governmental fraud. Brandeis made the entire case a major embarrassment for the Administration proving the

Taft had backdated documents and lied about his actions as an executive. This lead to Taft’s distrust and outright dislike of Brandeis. Originally when Louis Brandeis is nominated for the

Supreme Court, Former President Taft makes a public statement denouncing this nomination.

Later on the Court, Taft came to respect his fellow Justice, highlighting Brandeis’s ability to use and mend relationships.

While he was appointed to a Court dominated by conservatives, Brandeis finds little trouble personally gaining the respect and friendship of his colleagues with the exception of the publicly anti-semitic Justice McReynolds. He even goes on to befriend Presidents who serve with him such as President Roosevelt who endearingly calls the first Jewish Justice “Old Isiah.”

Even while forming a bond with President Roosevelt, Brandeis still commands his ability to stay truly independent. Brandeis signs a letter to the President written by Chief Justice Hughes and joined by conservative Justice Van Devanter publicly defending the Court against Roosevelt’s court packing plan. While historically Brandeis is remembered as an inspirational progressive justice, Brandeis never forgot his core beliefs about economics and his lifelong pursuit against the “curse of bigness.”109 To this end, Brandeis votes down key New Deal cases in order to limit

108 Spillenger, Clyde. "Elusive Advocate: Reconsidering Brandeis as People's Lawyer." The Yale Law Journal 105.6 (1996): p. 1494 109 Brandeis, Louis Dembitz, and Melvin I. Urofsky. 1995. Other People's Money and How the Bankers Use It. Boston: Bedford Books of St. Martin's Press.

!65 the presidents power and fight economic centralization.110 He was quoted as telling an aide of

Roosevelt’s “This is the end of this business of centralization, and I want you to go back and tell the president that we're not going to let this government centralize everything.”111 He did this even after advising Roosevelt early on helping to create the Securities Act, a key piece of the

New Deal. Brandeis even voted with the majority in the United States v. Butler case upholding aspects of the Agricultural Adjustment Act because he found the tax did not conflict with the constitution, even though personally he did not agree with the overall policy.112

In the beginning of his career a majority of his opinions are written either dissenting with or in the majority with Justice Oliver Wendall Holmes, later liberal additions to the court, such as

Justices Cardozo and Stone, are often seen voting in agreement with Justice Brandeis.113

Brandeis was never shy to speak his mind known for his dissents, and voted with whomever and against whatever when he saw the facts were on that side. Being a man of facts guided Justice

Brandeis to a position where it would be near impossible to say that his relationships in anyway corrupted him and yet he still maintained strong political and personal relationships. Another example of his character comes in his famous concurrence in the Ashwander case. In a pivotal

New Deal case dealing with the Tennessee Valley Authority, a creation Brandeis very much

110 Louisville v. Radford (1935), Brandeis wrote for a Unanimous Court overturning an act that would have given FDR more economic power, Brandeis also joined the majority in Schechter Poultry Corp. v. United States (1935) voting against giving FDR power to make any law he saw as necessary for economic recovery. 111 Harry Hopkins, "Statement to Thomas Corcoran Giving His Recollections of the Genesis of the Supreme Court Fight," April 3, 1939, typescript in Harry Hopkins Papers 112 Chicago-Kent College of Law at Illinois Tech. "United States v. Butler." Oyez. https://www.oyez.org/ cases/1900-1940/297us1 (accessed April 20, 2016). 113 Cardozo, Stone, and Brandeis were the liberal block known as the “Three Musketeers” in opposition of the conservative Justices popularly known as the “Four Horsemen”, Justices Butler, McReynolds, Sutherland, and van Devanter.

!66 supported personally, he decided not to just vote with the majority to support the

Constitutionality of something he agreed with personally. Instead, Brandeis wrote a concurring opinion to give a detailed explanation of why this case should have been thrown out of the

Court’s and was not a decision for the justices to make.114 In most instances, if a justice believed in the Constitutionality of landmark legislation challenging a president they often agree with, they will vote with the majority stay quiet. Brandeis, however, could not sit idly by and made sure that his views of the role of the Court were made clear.

Brandeis’ nomination to the Court also represents and anomaly for its time, not only because he was the first jewish justice named to the Court but also because of how long and contentious his nomination was in the Senate. This nomination process differentiates itself from those of the modern era as the nominee never testified before the Judiciary committee, in fact

Brandeis spent the entire five months in Boston only receiving news of the hearings in the papers as well as through his floor manager, friend, and future momentary colleague, Felix

Frankfurter.115 Throughout his nomination there were rare overt mentions of antisemitism, but many subtle comments made. In fact one of the only mentions of the word “Jew” came during the testimony of Francis Peabody, who when asked about Brandeis’ ethical behavior responds that he had only recently learned that Brandeis was a Jew.116 The anti-semitic President of

Harvard, A Lawrence Lowell, wrote letter against Brandeis’ nomination, however as noted by the role of Harvard Law Professor Felix Frankfurter in this process, the professors and students of

114 Chicago-Kent College of Law at Illinois Tech. "Ashwander v. Tennessee Valley Authority." Oyez. https://www.oyez.org/cases/1900-1940/297us288 (accessed April 20, 2016). 115 Frankfurter is sworn in on January 20 1939, while Brandeis Retires from the Bench on February 13. 116 Parry-Giles, Trevor. 2006. The Character of Justice: Rhetoric, Law, and Politics in the Supreme Court Confirmation Process. East Lansing: Michigan State University Press. p 41

!67 the University did not fully support this move writing a separate letter supporting the nomination of one of their smartest alumni.117 Brandeis’ independence, what this study prides as making him the ideal model of President Justice relationships, was brought up as a negative. Many major

Boston attorney’s opposed his nomination because he rarely gave in to legal customs such as granting opposing counsel extensions on briefs. This serves as another example of his high ethical standards always adhering to the rules, rather than customs. Brandeis’ nomination battle serves as almost a foreshadow of future nomination processes although with the nominees present. This early politicized fight even further sets Brandeis apart as an exemplary case as he can be more easily compared to nominees that endure long floor flights and hearings that become more normal during the post-Johnson era.

Chapter 12. Felix Frankfurter Felix Frankfurter’s path to the Supreme Court was a fascinating one that stands out in many ways and yet follows an approach is driven by deep relationships. First and foremost, Felix

Frankfurter was one of the top legal scholars of his generation and was no surprise in the discussions about Supreme Court appointments. As a prominent professor at Harvard Law and an inspiring mind, Frankfurter found his way into public perceptions of law and government long before he ever became a justice. The interesting aspect to all of this is that while in many ways he fits the prototypical mold for an appointment especially at this time, Frankfurter personally never necessarily saw it coming or thought of himself as a candidate. His path to the U.S.

Supreme Court began in sincerity when he was announced as a candidate for the Massachusetts

Supreme Court. Following this announcement Frankfurter received the first of many similar phone calls from President Roosevelt who suggested he turn down this opportunity, suggesting

117 Brandeis reportedly had the highest GPA in Harvard history under the old grading system.

!68 “You ought to be on the Supreme Court of the United States.”118 While Roosevelt first suggested a future job for the law professor, he did not actually offer it or have the ability to nominate a new justice at that time. Roosevelt in this moment comes off as much more of schemer trying to put in motion future moves. In Frankfurter, we also see another example of a Justice that does not aspire to the Court. Roosevelt instead tries to lure him by offering him the position of

Solicitor General, which he turns down.119 To this Roosevelt says I'm going to talk to you as a friend if I make you solicitor general “I can put you on the Supreme Court.” Frankfurter responds “I’m not going to take one job I don't want on the chance or the expectation of having another job that I'm not sure I want”120 In this memory, Frankfurter outlines the inner conflict he felt as Roosevelt continued to dangle a job over him that he was not completely sold on to begin with. This shows that while the Supreme Court was transforming into an incredibly prevalent group of actors in American politics and had already become a much more prestige role, it still had not become the ultimate position for a prominent legal scholar. Frankfurter, an influential power broker himself in his dual role at Harvard and growing D.C. presence, clearly did not want to give up this autonomy and ability to have his hand in many projects from new executive agencies, to creating the ACLU, to shaping the minds of future political and legal leaders like

Thomas Cochran.

Frankfurter played a key role as an advisor to Roosevelt in creating and implementing the

New deal. In fact Frankfurter furnished the newly created government agencies of the New Deal

118Frankfurter, F., Phillips, H. B., & Paul Avrich Collection (Library of Congress). (1960). Felix Frankfurter Reminisces: Recorded in talks with Harlan B. Phillips. New York: Reynal Company. p. 278 119 Frankfurter Reminisces p. 278 120 Frankfurter Reminisces. p. 278.

!69 with his students from Harvard Law school often referred to as “Felix's Happy Hot Dogs.”121

Beyond being an advocate of the New Deal and an advisor to the administration while still at

Harvard, Frankfurter and Roosevelt developed a close personal relationship. The Justice remembered in an oral interview that it was not uncommon for his wife and him to be invited for a weekend in Hyde Park at the Presidents home for a weekend at least every year.122 This meant that when he was invited after Cardozo’s death he did not seem to think it was anything out of the ordinary until his wife commented to him that Roosevelt was acting strange.123 While visiting

Hyde Park the President eventually pulled Frankfurter off and said “I want to tell you why I can’t appoint you to succeed Cardozo.” Frankfurter felt embarrassed hoping to relieve the President of this bad feeling he had over not being able to appoint Frankfurter.124 Roosevelt then revealed the names of other jurists he wanted on the Court and requested Frankfurter’s assistance in discerning which ones are worthy of the nomination. In this remembrance the Roosevelt

Frankfurter relationship is able to be placed on the spectrum somewhere in between Washington

Jay and Johnson Fortas. It seems to be a very similar relationship to the first president and chief although slightly different due to the different time they lived in and the different personalities present, it does not seem however as extreme or catastrophic as Johnson and Fortas, but this may have been the better example Johnson failed to follow when it comes to having a close relationship with a leading legal scholar and jurist. Furthermore, Roosevelt’s trust of Frankfurter

121Graham Jr., Otis L. "THE HAPPY HOT DOGS". The New York Times June 12 1988. Web. 11 Jan. 2016. http://www.nytimes.com/1988/06/12/books/the-happy-hot-dogs.html 122Frankfurter Reminisces p. 279 123Frankfurter Reminisces p. 279 124 Frankfurter Reminisces p. 280

!70 was seen by him seeking Frankfurter’s advice on who to nominate instead of him. Finally, after another round of teasing just when Frankfurter was beginning to get fed up with being “whipped around” on the phone by the President, he told him he was sending his name to the Senate to be nominated for the Supreme Court.125

Before ascending to the Court, Frankfurter developed relationships with other key legal minds such as Brandeis and Cardozo. In the 1930s while playing a role as Roosevelt’s Harvard influence for the New Deal, Frankfurter grew closer with Benjamin Cardozo, the Jewish Justice that he would eventually replace. Similarly, Frankfurter worked with Louis Brandeis to advocate for causes as directed by the first Jewish Justice. His relationships with Presidents and other

Justices shifted dramatically from here. After developing a close relationship with Roosevelt leading to his trust in Frankfurter’s judge of character for future federal employees and even other candidates for the Court, and close relationships with two key predecessors on the Court,

Frankfurter begins to treat other Justices and even Presidents like his law students at Harvard.

Other Justices began to despise the lectures and condescending tones from Professor Frankfurter.

One common example of this is his career long dispute with Justice Black. This can also be seen in his letters with President Kennedy. He talks to the President respectfully, respecting the office but when talking to Kennedy it also comes off as a professor speaking to a pupil rather than a justice speaking to the President. He is discussing a prominent official when he adds the aside

“who I won’t have to remind you was President Woodrow Wilson’s Secretary of the Interior.”126

This tone and attitude cited by many in their interactions with Frankfurter begins to call into

125 Frankfurter Reminisces p. 283 126Felix Frankfurter to the President, White House Famous Names, Felix Frankfurter, WHCF, JFK Library

!71 question the benefit of selecting nominees through personal connections. It would seem that if a

President like Roosevelt cultivates this strong personal relationship with a nominee such as

Frankfurter that the nomination would also be an endorsement of their personality. While this could be a case where Roosevelt may have felt that Frankfurter’s legal prowess made up for his condescending personality, a larger question arises about this nomination. The larger question comes from Frankfurter’s fame as a justice, while this isn’t fame in a Hollywood sense, the

Justice is known in legal circles for his promotion of and adherence to the principle of judicial restraint. Frankfurter disappointed those who expected him to transform the court into a liberal bastion. Some of his key victories such as those in Minersville School District v. Gobitis were viewed as loses for his fellow New Deal appointees.127 Frankfurter upheld a Penn law requiring students to salute the flag, rejecting Black’s free speech arguments. Frankfurter composed a patriotic ode to the country as war approached, though Gobitis would not be over turned three year later in West Virginia v Barnetter the opinion provoking a Frankfurter dissent.128

Felix Frankfurter’s relationship with Roosevelt was exemplary of the times in that he shared both a personal and professional relationship with the President before ascending to the

Court. He can be seen advising the President on a variety of issues and his touch can be seen all across Roosevelt's administration through the young law students he placed in positions of power. Frankfurter would not represent the ideal Justice in the eyes of a President. A Supreme

Court Justice, or numerous justices, can be a Presidents biggest legacy as they can interpret using the feelings and wishes of the Presidency for years beyond the final day of a Presidents tenure in

127 Chicago-Kent College of Law at Illinois Tech. "Minersville School District v. Gobitis." Oyez. https:// www.oyez.org/cases/1940-1955/310us586 (accessed April 20, 2016). 128 Chicago-Kent College of Law at Illinois Tech. "West Virginia State Board of Education v. Barnette." Oyez. https://www.oyez.org/cases/1940-1955/319us624 (accessed April 20, 2016).

!72 office. Frankfurter instead took the Washington model to a whole new level. Rather than simply exclaiming the need for separation of powers and then continuing to take on extrajudicial appointments showing that he could have easily been an extension of the Presidents will on the

Court, Frankfurter lives separation of powers and votes with his conscience and legal beliefs rather than with his President. The framers would have loved this because he shows that a relationship does not necessarily require collusion and corruption. Sadly as the Court only becomes increasingly politicized from here, it is rare to see a Justice follow the Frankfurter model and even rarer to find a President who would honestly attempt to recreate this scenario. It would make more sense under theories of Presidential power for a President to search for a

Justice like Thurgood Marshall who had previously played roles in the Johnson administration as

Solicitor General, advised the President in many areas and then went on to be the ideal liberal justice often following the theory of judicial activism as Johnson had intended. Frankfurter, while flawed, should be hailed as an honest justice for not letting relationships change his decisions on the court instead sticking to his own beliefs.

Chapter 13. Earl Warren

Earl Warren provides yet another example of a famous and influential justice who followed a some what unconventional path and went on to have interesting and important relationships with multiple presidents. Warren started his career as a prosecutor, as a district attorney and then as the Attorney General of California. Warren says in his autobiography that while Governor he at first did not have any national aspirations in politics, until he was convinced by other members of the Republican party. This led to him becoming Governor

Dewey’s Vice-Presidential Candidate in the campaign against Harry Truman. Followed later by

!73 Warren running in the primaries against soon to be President Eisenhower. He cut a deal with the

Presidential hopeful to drop out of the race in exchange for the first open Supreme Court seat.129

While this was the first or last time a Supreme Court seat was dealt as political patronage, it turns out to be one of the most fascinating examples, and also brings up a piece of personal relationships that hasn't been discussed yet, using these appointments to keep friends from becoming enemies. While President Eisenhower and Earl Warren did not have a significant relationship before the primaries, Warren often refers to his respect for “the General.”130 This deal was a win for both sides, although it probably served as a much larger victory for Warren in the long run. Because of Eisenhower’s popularity, it is pretty clear that especially in the

Republican primaries, Earl Warren would have lost pretty handedly. Therefore, by striking this deal he guaranteed himself a seat at the table while avoiding ending his political career entirely.

Furthermore, this deal worked out well for Warren as the first open seat happened to the Chief

Justiceship, making his seat at the table a rather important one. Because of all of this, it almost makes one wonder why Eisenhower would cut this deal. To this question, the best answer is the unpredictability of the Chief Justiceship being the the next open seat. Chief Justice Vinson died unexpectedly of a heart attack at the age of only 63. Due to the fact that he was in fact one of the youngest on the Court at the time and only one justice was over 70, Eisenhower was under the assumption that he would have time as President before having to appoint Warren. The other factor in this is that Eisenhower wanted to appoint moderate justices and at this point in his career, Warren was known for being a tough on crime prosecutor and moderate governor,

129 Horwitz, M. J. 1998. The Warren Court and the Pursuit of Justice: A Critical Issue. New York: Hill and Wang. p. 7 130 Warren, Earl. 2001. The Memoirs of Chief Justice Earl Warren. Lanham, Md: Madison Books. p. 6

!74 showing that while maybe he was not Eisenhower’s best friend or top choice for Chief, he did fit the bill for a justice Eisenhower wanted. This also was the result of a convention numbers game.

For Eisenhower, at the convention he was very close to the number of delegates needed to secure the nomination when he proposed this deal to Warren in order to guarantee his nomination. After the election, Warren accepted the position of Solicitor General, reminding the President that it would provide him the legal experience he needed to become the obvious choice for justice when the next seat opened, true to the President-elect’s promise. Before this could be announced however, the Chief Justice died suddenly of a heart attack.

This decision was made exclusively through political conversations between prominent

Republicans and a recently elected President. This decision was made more out of political convenience rather than as true patronage or due to close ties going back many many years. In fact one key of the relationship between Eisenhower and Warren is the staunch reaction of the

President to the decisions Warren makes and oversees on the Court. Eisenhower claimed that these were not the decisions he envisioned when he appointed Warren to the Court, while Warren claimed that his decisions did not deviate from his legal background and record. This disagreement signifies the true lack of meaningful relationship prior to Warren’s appointment, while they had known each other as prominent Republicans and advisories in the primary process, it wasn't significant enough to signal to Eisenhower how Warren would vote beyond the suggestion that he would be moderate. In this case, I think that the strength of personal relationships is highlighted. While this process yielded one of the most well known justices who oversaw landmark cases like Brown v Board, Mapp v Ohio, and Miranda v Arizona,s it comes off as more corrupt and a bigger betrayal of the Constitution than the selection of close personal

!75 friends. When selecting a close personal friend the President can at least propose that he has selected this justice because through their long relationship he has come to understand this judge’s character and is assured that they will carry out their duties to the Constitution faithfully and at the level required of this prestiges position. Here, the backroom politicking often associated with deals that result in unnecessary government spending in order to secure a nomination. While it worked out in the end appointing an able Judge, this seemed like a bigger risk as it is less clear to the President what his nominee will do.

Earl Warren’s relationship with President Eisenhower can be discussed and analyzed through two key conversations. The first is a conversation at the White House while Brown was being decided, and the second is a conversation in 1965 on Air Force One going to the funeral of

Sir Winston Churchill. In the first conversation, Chief Justice Earl Warren was invited to the

White House for a dinner while Brown was under submission. Also at this dinner was John W.

Davis, the lawyer for the segregation states. Warren states in his memoir that the President essentially went out of his way to talk to Warren about what a great man Davis was. At the conclusion of dinner, according to Warren, Eisenhower took him by the arm and walked him into the other room and said, “These are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes.”131

This is one of the clearest cases of a President trying to use their influence in case in an unofficial way that could ever exist. While President Eisenhower never explicitly says decide the case this way or that way, he provides arguments for the side he implicitly supports and seems extremely focused on protecting the dignity not only of John W. Davis but also southern segregationists as a

131 Warren p. 291

!76 whole. This seems to mimic the kind of politicking that landed Warren on the bench, but in this case Warren does not give in to the politicking. More importantly this seems like a moment when a justice with closer ties to the president would give in to the President’s wishes. While Warren most likely kept his stance on Brown because he not only thought he was in the right, but had also worked fairly commandingly to assure that this decision would be unanimous, it is possible that the defiance here came from the lack of allegiance to the President through personal relationships. This moment serves as an example of the cost or benefit of choosing a justice who isn't strongly personally connected to the Commander and Chief. Through the eyes of 2016 when there is near consensus agreement that Brown was decided correctly, this is easy to label as a victory and benefit of picking a justice who does not feel obliged to give into a persuasive dinner invitation. However, from the lens of presidential power theory, this is a cost, when picking someone who does not carry such allegiances the Presidential influence will not always work especially when it comes to a Chief Justice who is in a fairly isolated and safe spot allowing him to resist influence. In fact, had this same situation occurred between Presidents and Chief

Justices with closer ties, it would probably be not only easier to influence the Court, but a dinner such as this one would not even be necessary, the justice would already know the president’s preference. In fact that method would more follow President Eisenhower’s own views on good leadership through his famous quotation, “The essence of leadership is to get others to do something because they think you want it done and because they know it is worth while doing -- that is what we are talking about."132 Earl Warren, however wanted something else and did not

132 Remarks at the Republican Campaign Picnic at the President's Gettysburg Farm, 9/12/56 Found through the Eisenhower Presidential Library at https://www.eisenhower.archives.gov/all_about_ike/ quotes.html

!77 follow the President’s leadership in a crucial case, helping elevate his name in history instead of falling as another presidential pawn.

Another clear example of the relationship dynamic between Warren and Eisenhower comes through their conversation after Eisenhower had long since left office. Eisenhower is oft quoted as saying that appointing Warren to the bench “was the biggest damn fool thing I ever did.”133 Warren having heard this before got it confirmed in a conversation between the former

President and the Justice that left a different legacy then he had hoped. Warren described the conversation saying,

I do not recall how the conversation started, but Eisenhower said he had been disappointed in Justice Brennan and me; that he had mistakenly thought we were “moderate” when he appointed us, but eventually had concluded otherwise. I replied that I had always considered myself a moderate, and asked him what decisions he was referring to.134

The difference in opinion about Warren’s position is highlighted as the Chief Justice believes he has stayed true to his views and the former President saw his time on the bench as much more liberal. Chief Justice Warren went on to ask about which cases the President was unhappy with specifically and was told in no uncertain terms that the cases dealing with Communists were handled too liberally, only to learn the former President had neither read the decisions nor cared for Warren’s explanation of his judicial policy ending the conversation bluntly, “What would do with the Communists in America?’‘I would kill the S.O.Bs,’ he said. I was sure this remark was merely petulant rather than definitive, so I replied ‘Perhaps that could be done in the Army, but it could not be done through civilian courts.”135 This conversation shows a complete disconnect

133 Warren p. 5 134 Warren p 5-6 135 Warrens p 7

!78 between the Justice and President who appointed him. This only furthers Warren’s position of holding more allegiance to the rule of law over the person who appointed him. Throughout all of these examples,Warren stands out as a excellent example of the best case for the post-Johnson model while happening in the era of Washington model appointments. However, not everyone is

Earl Warren. Not everyone could handle a dinner at the White House with the President pulling them off to discuss a case, and not everyone would be able to thank the President who appointed them only to be served a lengthy scolding for their decisions.

Earl Warren interestedly enough has a better relationship with the two Presidents of the other party that follow his appointing President. In a letter from Chief Justice Warren to

President Kennedy, he thanks the young President for coming to his surprise birthday party, noting that his clerks especially got a kick out of having the President come to the surprise party they planned.136 One interesting point here is that the relationship may have been better since

Kennedy campaigned on many of the ideals that Warren was deciding in key cases, their judicial views matched better than those of Warren and Eisenhower. Kennedy later invites all the justices and their wives for a social dinner at the White House, in the thank you note for this event Chief

Justice Warren is very grateful and his language suggests that it was a much more social and enjoyable evening as opposed to the pressure filled dinner with President Eisenhower.137

President Kennedy in his relationship shows respect to the Chief Justice, gaining his respect in return. This relationship seems to benefit Kennedy and following theories of presidential power would yield him more influence with the Chief Justice. This courtship does not appear to yield

136Earl Warren letter to the President, White House Famous Names, Earl Warren, WHCF, JFK Library 137 Earl Warren White House Famous Names file JFK Library

!79 any improper decisions or moments that are notable enough to be reflected in Warren’s memoirs, in contrast with the multiple animus moments he experiences with President Eisenhower, who he claimed to have always respected.138

There is one last episode that comes from his unique position and relationships with two

Presidents that marks another lasting piece of his legacy, The Warren Commission. His selection to chair the bipartisan independent commission to determine the facts of the Kennedy

Assassination makes sense for a wide variety of reasons, but this selection was not only simply because of his role as Chief Justice, it is also deeply rooted in his connections to the presidency.

Justice Warren as discussed previously had both working and personal relationships with the presidents during his tenure. In fact the night before John F. Kennedy left for Dallas, the Chief

Justice and entire Supreme Court were gathered at the White House, he even remembers in his memoirs that they Justices “jokingly” warned the President to be careful around the told him to

“be careful down there with those wild Texans.”139 He also remembers being asked to be among the few that met Air Force One in Washington when the newly sworn in President and the body of the former President were flown back to the Capitol. Finally, Jackie Kennedy personally called him days later to ask him to speak at the Capitol building when her husband’s body would lay in state. Through all of these anecdotes the Chief Justice remembers his close connection with the President becomes clear, this alone would make him the right man to oversee the truth finding commission to right the stories of his lost friend.

138 Warren p. 5 139 Warren p. 352

!80 His role as Chief Justice and his trustworthy reputation gained throughout his public career made him the right choice for this commission, however his opinion on extra judicial appointments caused him pause. Just as with Charles Evans Hughes and many others, the issue of extra judicial appointments is an honor that consistently divides the minds of the justices.

Chief Justice Warren is no different, in fact as a student of Supreme Court history, he goes out of his way to discuss the possibility of extra judicial appointments privately with each of his fellow justices and studies the historical examples. When approached about the creation of this commission, Warren made his opinions clear. He is told Johnson wants a commission, he thought this was wise, but when told he was who Johnson wanted to lead it, he said he did not think he should be selected. Explaining his reasoning the Chief Justice wrote,

First, it is not in the spirit of the constitutional separation of powers to have a member of the Supreme Court serve on a presidential commission; second, it would distract a Justice from the work of the Court, which had a heavy docket; and, third, it was impossible to foresee what litigation such a commission might spawn, with resulting disqualification of the Justice from sitting in such cases.140

His instinct to first point out the issue of separation of powers is backed up by his previous actions. His view of separation of powers seems to follow somewhat of the same belief of Justice

Jay. Much like the first Chief, Warren cultivates a close personal relationship with multiple presidents valuing this experience as outlined above, but sees a clear separation between this private time and serving at the pleasure of the president. This can be seen especially in his strict adherence to his legal views even when challenged and suggested otherwise at the White House by President Eisenhower. The second point he makes, he later supports with his evidence from many of the examples listed already in this research, such as the Hughes Commission and what a

140 Warren p. 356

!81 distraction to the Court that was and how over worked the Justices already were. In fact in this reasoning, Warren goes further than Hughes in his belief of the need to keep this job on a pedestal above other appointments. Warren explained how he saw Justice Jackson’s short leave from the Court for Nuremberg distracting and how it created many divisions on the Court, he even went on to discuss the Pearl Harbor commission and how its report did not produce enough public good to warrant a Justice further burdening themselves. His final objection is one that is both unique to this commission and is a new reason previous Justices had not discussed.141 This reason can be traced back to his constitutional hesitations in taking this position. It is fascinating to see the issue of separation of powers be so prevalent in this debate even after a long line of precedent had been set of justices taking these positions. However, this is consistent with his views of the law and with his moral character that is present in all of his opinions and moves as a politician.

Lyndon B. Johnson’s skills at convincing people to do what he wants changes all of these nerves. President Johnson finds an answer to each of these hesitations. Furthermore, President

Johnson, always planning had already picked an ideal commission and presents it to Warren emphasizing that his leadership is the cornerstone of this commission. Johnson explains “You were a solider in World War 1, but there was nothing you could do in that uniform comparable to what you can do for your country in this hour of trouble.” To which Warren responded, “Mr.

President, if the situation is that serious, my personal views do not count. I will do it.142” This highlights both Johnson’s skill as a negotiator and his personal knowledge of Warren, knowing

141 At least not in their memoirs and other documents searched for this research. 142 Warren p 358

!82 that this response to his hesitation would change his mind. This also goes to the earlier concerns of other justices that lead me to come to the conclusion that in the relationship dynamic between justices and presidents, the onerous is on the president not to ask a justice to serve in a different capacity as it puts the justice in a position where they cannot say no. This is typical of President

Johnson in his tactics. While Chief Justice Warren was hesitant, he made the right decision to oversee this commission and Charles Evans Hughes and other prominent justices would support his decision as well, due to the national importance of this commission.

!83 IVConclusion

Chapter 14. Final Thoughts

Justice Antonin Scalia and Ruth Bader Ginsburg provide a good pair to transition this discussion to more modern discussions of this concept. First Justice Scalia, the former larger than life conservative defender of originalist ideals of law and the constitution, had unique relationships that bring up many issues discussed throughout this research. Most importantly, in the wake of his death there have been a resurgence of discussions about his relationship with former Vice President Dick Cheney. The event that called their social friendship most into question was a hunting trip the two men were both apart of shortly after the Supreme Court had agreed to take up a case involving Cheney’s impartiality when creating energy policy for the

Buch Administration, “in re Richard B. Cheney.” Justice Scalia responded to media questions about the trip by explaining precedent explored in this research about social connections between

Presidents and Justices, stating,

Cheney was indeed among the party of about nine who hunted from the camp. Social contacts with high-level executive officials (including cabinet officers) have never been thought improper for judges who may have before them cases in which those people are involved in their official capacity, as opposed to their personal capacity. For example, Supreme Court Justices are regularly invited to dine at the White House, whether or not a suit seeking to compel or prevent certain presidential action is pending.143

In this response, Justice Scalia explained the situation very much in line with how President

Johnson would have responded to inquiries about Justices Warren and Fortas visiting the White

House for a swim, the difference of course being the fact that Cheney was directly involved in a case before the Court at the same time of this trip. Now this brings up the questions that

143 Savage, David G. 2004. "Trip With Cheney Puts Ethics Spotlight On Scalia". Los Angeles Times. http://articles.latimes.com/2004/jan/17/nation/na-ducks17.

!84 American media, and political and legal scholars have been thinking about debating especially in the post Fortas world. This is the exact scenario people who advocate for justices with little connections to sitting presidents worry about. The trouble of course is that when nominating

Justice Scalia there would be no way to predict future presidents. Further while Scalia, Cheney, and all the other attendees can claim the case was never discussed on this trip, it would be near impossible to fully confirm this. But just as the Justice said, this is not a new phenomenon and furthermore this is while it is of the utmost importance that the Justices be of the highest moral standards and come to the Court with strong character. Through this research it has become clear that one way for a president to guarantee this is to nominate someone they have a close personal relationship with and can essentially publicly discuss their moral character from personal experience.

Scalia’s closest friend on the Court and ideological opposite, Justice Ruth Bader

Ginsburg, when visiting Brandeis was able to provide me with a unique perspective on the relationships studied throughout this research. One aspect she discussed that opened a new theme to be explored is the fact that some Presidents have a particular goal in mind when nominating

Judges not just to the highest Court but also all federal courts that goes beyond politics and personal relationships. For instance, she discussed that President Jimmy Carter who first nominated her to the Bench aimed to put more women in Federal Judge positions and had he had the opportunity to would have put the first woman on the Supreme Court. In fact, President

Carter had told Shirley Hufstedler she would be his pick, while she had resigned from the 9th circuit to be the first Secretary of Education, she was told this would not keep her from the

Supreme Court if a seat were to become vacant. President Obama has followed a similar suit

!85 nominating many qualified judges to federal courts from diverse backgrounds to better reflect the make up of the American population, his successful selection of two women, one hispanic, one jewish, have served this goal even on the Supreme Court. Justice Ginsburg also discussed the fact that current justices are still invited to dinners at the White House now and then and that she very much believes these relationships are incredibly valuable and important. She mentioned that some presidents try harder than others to cultivate these relationships. For instance, Justice

Ginsburg said that since President Clinton was very interested in constitutional law he hoped to have a weekly meeting with all nine justices to discuss and debate the Constitution. This social gathering rarely occurred due to the presidential schedule and later scandals. Justice Ginsburg ended her response to these questions by highlighting the importance she sees in there being a relationship between members of different branches of government. She highlighted an annual dinner between the women of the Senate and women of the Court that brings together important female leaders across party lines. She said that through these relationships the different branches can be sensitive to the other’s concerns and needs, allowing the government to function at a higher level.

President Reagan used relationships to choose nominees, while considering a short list of names, and hoping to name the first woman to the Court, he not only considered the same women that Nixon considered but then considered names provided by the Court. In fact, many credit Justice Sandra Day O’Connor’s selection not simply to President Reagan but also Chief

Justice Rehnquist who lobbied the President on his friend’s and the Court’s behalf. Though his influence over his Court did not rise quite to the level of Chief Justice Taft, Rehnquist was able to argue that if a woman was to be named to the Court, he, many lawyers, and fellow justices

!86 believed O’Connor was the right selection. This is a representation of modern use of these relationships and allowing them to influence government in a way that most would agree is positive an beneficial for all.

President Obama has similarly reached out to members of the Court and while not actively pursuing close relationships with justices, besides appointing two with whom he has some familiarity, the Justices have not been too distant from the former constitutional law professor. Most notably, when visiting the Court in his first term, President Obama was asked by

Justice Kennedy if he would want to come play basketball in “the highest Court in the land,”144 to which he responded that he had heard Justice Ginsburg had been working on her jump shot and was worried he would get beat.145 President Obama’s relationship with the Court has been interesting as much of his Presidency has been shaped by challenges in the courts to his policy.

For Instance, rarely does the crowning achievement of a Presidency, in Obama’s case the

Affordable Care Act, have not one but two chances to be struck down or dramatically changed by the Court while he is in office. In both cases, Obama has seen his accomplishment upheld, gaining political momentum from the Court’s ruling. President Obama similarly has gained this kind of momentum after rulings on other cases such as the legalization of gay marriage, prompting the President to make a Rose Garden press conference to celebrate a Court opinion.

While some of President Obama’s chances to select a justice will be explored in the final pages

144 The basketball Court in the Supreme Court Building on the top level of the highest Court of appeals in America. 145 The Oath Jeffery Toobin https://www.washingtonpost.com/entertainment/books/the-oath-the-obama- white-house-and-the-supreme-court-by-jeffrey-toobin/2012/09/14/ff9d4c54- fb56-11e1-8adc-499661afe377_story.html

!87 of the conclusion, his relationship not only with the Court but also its justices can be very much seen as a product of the successful and failed nominations and friendships of his predecessors.

Chapter 15. Conclusion It has become more and more clear throughout this research that a relationship between two prominent figures in different branches of government, more specifically the presidency and the judiciary is not a red flag or a reason for fear but instead the ideal model for a functional democracy under the constraints of the Constitution. In fact, this is and was how our government worked for decades under the Washington model. A shift is now needed from a post-Johnson model back to the Washington model, allowing for trust of presidents and justices. There have been countless major scandals in the history of the presidency, issues of character, judgement, and even treason, but these presidential moments have not stopped us from continuing to have a presidential system, they have instead created different questions that guide our selection process. In the same vein, we should not let an one bad relationship ruin the system that produced such justices as Davis, Hughes, Frankfurter, Brandeis, and Thurgood Marshall. These justices either legendary or quietly ethical jurists prove that the old model can work. There is even a modern example that further proves how this can be done, Elena Kagan served as

President Obama’s Solicitor General, while this was not as close a job as others have been promoted from in the past, it shows that the correct question is not whether or not there is a connection between the justice and the president, but to what degree will that connection hinder the independence of thought and decisions of the Justice.

Kagan further points to the success of the Washington model in another way. Justice

Kagan had not been a judge before joining the Court, in fact she followed the exact path

!88 Roosevelt wanted for Frankfurter. As Dean of Harvard Law School she made her name as a prominent legal scholar, the President then appointed her as Solicitor General giving her incomparable experience with the Court and then without appointing her to a Court of Appeals, promoted her straight to the Court. Since this promotion, she has written about 12% of the majority opinions, which is an admirable number for the most junior member of the Court, showing her value and ability as a Justice.146 In comparison, fellow Obama appointee Justice

Sonia Sotomayor has only written 1% of the Court Opinions in her tenure, just about a year longer than Kagan’s.147 This goes to show that having someone who was a judge before their appointment does not necessarily dictate how they will be as a justice. However, the post-

Johnson model has come to almost require prestiges lower appeals court judges as nominees.

This preference comes from the increasing politicization of the confirmation process that has dissuaded presidents from trying to appoint top scholars or politicians they have a documented relationship with drawing on the lessons of Fortas and the distrust of cronyism and the government in general post Watergate. The polarization of the political process that is required to appoint a Justice has completely limited and changed who gets appointed. In fact, while Obama most likely has the ideal credentials to be a justice as he has served in both other Branches of government and was a constitutional law professor before running for office, he could never follow Chief Justice/President Taft’s example as his appointment would almost assuredly be met with hostility.

146http://supreme-court-justices.insidegov.com/l/112/Elena-Kagan 147 http://supreme-court-justices.insidegov.com/l/111/Sonia-Sotomayor

!89 John Jay and Washington were able to guide a young country while remaining able to disagree on certain constitutional questions but maintaining a working relationship and even mutual advisory roles. President Lincoln and David Davis proved that when a President has a strong history with a nominee that does not necessarily guarantee a corrupt justice. President

Eisenhower and Warren show that even choices made for political reasons do not tether a justice to certain positions. All of these justices would most likely fail to be appointed today due their political connections and relationship with the appointing Presidents, however each of them have played key roles in judicial and legal history.

Similarly, Brandeis most likely would have been a failed nominee in the modern process as he had possibly too many high profile clients and controversial cases. Some of these former clients and opponents tried to stop his nomination, as previously discussed. Brandeis was one of the first justices to go through a long drawn out confirmation process, although he did not attend a single hearing. This helps show why he is the ideal model because even his confirmation fits the today’s model. Even in a highly politicized climate and extra dramatic process, the Senate eventually confirmed the President’s nominee. This process did not change Brandeis, like the political circus that changed Justice Thomas from a very outgoing vocal jurist to one of the

Court’s quietest justices. Brandeis becomes the ideal model moreover because of his ability to cultivate political and social relationships while also remaining independent and never sacrificing his interpretation of the law for the benefit of a relationship. This independence and reliance on facts, plays a role in gaining the respect of justices, lawyers, and politicians across party lines. This allows him and Chief Justice Taft to go from legal opponents in the Pinchot

Ballinger Affair, to respected colleagues.

!90 To this end, Brandeis represents a modern realization of and improvement on the relationship ideal that Washington and Jay played out. Brandeis like Jay was known by the

President prior to his appointment and like Jay advised the President on significant issues before his nomination leading to their consideration for multiple positions not just justice. Furthermore, both historic Justices, were able to continue to advise and socialize with other political elites including the President once on the bench without compromising their position. Brandeis improves on this model as he fully appreciated his role on the Court and is a justice in a time when the Court’s role was more established leading him to dedicate himself to the Court and its work more than Jay who became frustrated with his work on the Court and sought fulfillment elsewhere.

While a majority of the Presidents discussed in this research are Presidents who in

Skowroenk’s view play key roles in presidential political history, it is not a requirement to be a redefining reconstruction president to have a significant influence on the Court through relationships. One of the best examples of this is President Taft, who in his own words is a fairly forgettable president, but who wields unprecedented influence over the Court both by appointing justices due to their relationship with and later himself gaining a seat on the Court and still dictating the other justices appointed, eventually selecting his successor Charles Evan’s Hughes who he had originally promised the Chief Justiceship many years before. It is important to consider the implications justices and their relationships with presidents have on presidential power theory, and especially, Skowronek’s, however his theory does not fully explain these relationships and their significance. In fact some of the most important relationships to this research came through presidents of articulation. Lyndon B. Johnson, a president of articulation,

!91 who acted more like he was a reconstructor used his relationships not only to guide his appointments to Court the, sitting Chief Justice, and ultimately changed the way American sees relationships between justices and presidents. This theory is however, helpful in understanding that different presidents represents different political trends and therefore will have different goals in their selections and relationships with justices. For instance, as presidents of articulation, it would not be surprising if those presidents seemed to emulate the relationships the reconstructing president had with their nominees and the sitting justices. This can be seen especially in the previous example of Johnson, Johnson is the ultimate faithful son of Franklin

Roosevelt’s politics and policies. Roosevelt very much used his nominations to promote friends and allies to the Court, while also cultivating close relationships with justices and using nominees and justices for more than just their legal role, relying heavily on Felix Frankfurter filling his new government administrations. To a similar end and even more so Johnson uses justices like Fortas and Marshall for much more than their assigned legal tasks. Fortas stamped nearly all major decisions at the beginning of Johnson’s presidency and ultimately resigns due to his failure to recognize the separation of powers. Marshall, a prior Johnson administration official, also can be seen and heard in phone calls cited previously counseling the President on selections for many posts throughout government. Furthermore, while in his posts during the

Johnson years, Thurgood Marshall is often brought to the White House when the President is meeting with key leaders of the Civil Rights movement, going above and beyond his job descriptions and playing the role of an intermediary. Finally, in reference to this theory, it is also interesting to note that Jimmy Carter, a president of disjunction, does not have the opportunity to nominate a justice. While this is not true for all Presidents of this category, it is interesting,

!92 especially considering that according to Justice Ginsburg, Carter had a clear plan for who he would want to nominate and wanted to put the first woman on the Court.

This research has also shown that Kernell’s presidential strategy of going public has becomes an increasingly popular strategy over time in reference to nominations to the Supreme

Court. This strategy plays itself out especially in the nomination process today through the use of planned or unplanned leaks to the media. This can be traced back especially to President Nixon who began leaking his short lists of nominees to the media. This leaking of shortlists, however, does not always say who the nominee will be and in many cases leaks names that will never be nominated but that will soften the naming of the actual selection. By leaking names it allows the public to explore nominees history and political alliances before the Senate even has time to begin hearings. In many cases, as relationships with nominating presidents has become less and less prevalent beyond Johnson and Nixon, the leaked list of names will include nominees with closer ties to the president than the final selection. For instance after the death of Justice Scalia, the lists of names leaked and rumored to be among President Obama’s favorites included names such as Attorney General Loretta Lynch who has an extremely close working relationship with the President. In reality, Garland, who was on some potential lists but often towards the end, had much less of a close relationship with Obama and therefore seems somewhat more reasonable and acceptable to the opposition party than the leaked names did.

After the Fortas scandal, especially in the Nixon years, there seemed to be an intense over reaction to Justices with significant prior relationships with the President. This has created a completely new new paradigm and today because of this, justices are even less predictable on the bench than before. One example, today is Chief Justice John Roberts. Having come from a

!93 judicial Lineage stemming from Brandeis’ clerk Judge Henry Friendly, Roberts has to some extent shown the independence of thought that Brandeis practiced, especially looking at his judgements in the Obamacare cases. To this he is putting the reputation of Court above his political preferences, often angering conservatives at the same time. This has lead to many conservatives to start to say that President Bush was mistaken when nominating him to Chief

Justice thinking the young judge would oversee an era of long conservative opinions. This represents a major new trend as presidents are less equipped to make claims about the long term views and behavior of justices they do not have established relationships with. But this is also leading to freer justices who have the chance to move for fluidly in their rulings based on law and not simply their political believes and connections. Roberts, however does not mean all justices who now have less connections to Presidents will come in a rule as swing justices, in fact, Alito, Sotomayor, and Kagan have all ruled in a vast majority of cases in ways their nominating Presidents would have expected. In today’s world where it is increasingly easy to have covert communications and meetings amongst political elites, I can understand the fear that nominating a Fortas will lead to even more corruption, however the overload of media throughout television, print media, and the web would make this much much harder as some staffer or clerk would inevitably leak the truth about the relationship.

Another trend that was discussed through the opinions of multiple Justices throughout this research was the issue of justices overloading themselves with extra judicial posts, this is something that has also changed fairly drastically since Charles Evans Hughes and most recently since the Warren Commission. Today, it is rare to see justices take on extra assignments as the

Court’s workload has become increasingly demanding and taxing. Similarly, justices have

!94 created a schedule that allows for some outside work but on a much more limited basis. Over the summer recess between late June and early October justices now take advantage of this time to rest, make their way around the speaking circuit. Most recently and surprisingly, justice Ginsburg has been announced to be making a cameo appearance as the judge overseeing Shylock’s trial in a production of the Merchant of Venice, this summer in Italy.148 This is a rare and extreme example of how the justices spend their time away from the Court, most just speak at law schools and universities or relax with their families. There has also been less of a need for our justices to take on other posts, as the number of political elites and qualified connected lawyers and experts has grown, many posts that would have previously been filled by justices are now awarded to others, who can dedicate more time to the cause. Along the same lines, since the Clinton impeachment hearings there have not been any large events that either constitutionally mandate a justice or rise to a level that a Justice would be expected to leave the Court to oversee.

Furthermore, with the development of international law there are a growing number of jurists who specialize in this area. So if and when things that feel like the Nuremberg trials arise, current justices are not tapped as there are other people who can provide similar services. While Charles

Evans Hughes spent time serving on an international tribunal in his years away from the Court, it is not easy to foresee a sitting Justice leaving for the Hague anytime soon.

148 Siegel, Benjamin. 2016. "Justice Ruth Bader Ginsburg To Be In Appearance Inspired By 'The Merchant Of Venice'". ABC News. http://abcnews.go.com/Politics/justice-ruth-bader-ginsburg-merchant- venice-production/story?id=37977521.

!95 Chapter 16 Merrick Garland

The nomination of Merrick Garland by President Obama to the Supreme Court provides a further description of the direction the importance of these relationships studied in this research.

First and foremost, Garland shares an interesting lineage, qualifications, and character traits with many of the justices studied and highlighted here. Garland’s judicial lineage traces back to

Justice Brandeis. Arguably one of Brandeis’ most successful and well known law clerks, Judge

Henry Friendly of the Second Circuit had Garland as a law clerk after Garland graduated from

Harvard Law School. Friendly is known as a feeder judge. As in many cases with the best of the best clerks that work for feeder Judges, Garland then went on to clerk for Justice Brennan on the

Supreme Court. Following his clerkship Garland went on to begin his legal career at Arnold and

Porter a well known DC firm that formerly was Arnold, Porter, and Fortas before, Justice Fortas’ reputation was tarnished. Following being offered a partnership by this firm, Garland began his career in public service as a prosecutor under a Republican President and worked his way to being a senior prosecutor at the Justice Department ultimately resulting in his position overseeing the entire investigation and prosecution of the Oklahoma City Bombing. Garland was appointed by President Clinton to the DC Circuit Court, often referred to as the “second” highest court in the land, a few years later he was nominated and confirmed to be the chief judge of this prestigious court. Finally, when announcing his nomination, the President touched on an aspect of his character that draws a comparison to Louis Brandeis, and points to the centrist voting record of Garland. Obama claimed that his nominee “should possess an independent mind,” in this requirement for nomination Obama has selected Garland for his independence that I

!96 identified as making Brandeis the model for his approach to relationships while on the bench.149

Looking at this storied career it is clear that Garland is one of the most qualified for this position on the nations first highest court. This follows the pattern seen in recent successful nominations and selections for the Court in the years after Fortas, today justices more and more come with extensive or at least some judicial experience rather than selections like that of Chief Justice

Warren who had more political experience and had not served in a legal role in quite some time.

Garland’s nomination however is not just a product of his impressive resume, it also represents a shift in the focus of relationships and qualifications. In announcing his selection

Obama stated,

I’ve selected a nominee who is widely recognized not only as one of America’s sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness, and excellence. These qualities, and his long commitment to public service, have earned him the respect and admiration of leaders from both sides of the aisle. He will ultimately bring that same character to bear on the Supreme Court, an institution in which he is uniquely prepared to serve immediately.150

Here he highlights not only Garlands character reflecting many aspects of Brandeis’ but also praises his relationships with political leaders across government and across both political parties. Garland brings high praise from members of the law enforcement community from his time as a prosecutor, he also brings praises from fellow justices. Judge Garland would not be the first of Friendly’s clerks to make it on the Court, as Chief Justice John Roberts also clerked for

Friendly. In fact Roberts and Garland both ran the law review at Harvard law just a few years

149 Gerstein, Josh, and Seung Kim. 2016. "Obama Picks Merrick Garland For Supreme Court". POLITICO. http://www.politico.com/story/2016/03/obama-to-announce-supreme-court-pick-at-11- am-220851. 150White House Press Release about Judge Merrick Garland’s Surpeme Corut Nomination, March 16, 2016 https://www.White House.gov/the-press-office/2016/03/16/remarks-president-announcing-judge- merrick-garland-his-nominee-supreme

!97 apart and served together on the DC Circuit court where Roberts has been quoted as saying “Any time Judge Garland disagrees, you know you’re in a difficult area.”151 Besides having a relationship with the Republican appointed Chief Justice, Garland also has immense support from both sides of the aisle in the Senate. Obama claimed that each of the times he has had the opportunity to nominate a justice both Republican and Democratic Senators have suggested

Garland, who made the short list when Kagan was nominated. Most notably, Republican Senator

Orrin Hatch, said at Garland’s first appointment “In all honesty, I would like to see one person come to this floor and say one reason why Merrick Garland does not deserve this position.” He has since said that Judge Garland would be a “consensus nominee” for the Supreme Court who

“would be very well supported by all sides.”152 Through his respect and relationships on the

Hill, in law enforcement, and even on the Court he has been nominated to, Obama has shifted the focus even further from nominees with close relationships with Presidents to nominees with close relationships in the other two branches, most importantly in the Senate. In this political climate, especially as politics get more partisan and divisive as the 2016 election approaches, it would be hard for Obama to nominate anyone with a strong connection him. In fact I would even go as far as saying that any nominee nominated by this President will face intense opposition even if that nominee were to be Scalia’s son himself. While this research has shown and argued that relationships with the president can be powerful and good and even better when in a judge with an independent spirit such as Brandeis’, the post-Johnson era will most likely continue towards more nominees and Justices who have other relationships across the Senate, maybe even

151 Garland White House Press Release 152 Garland White House Press Release

!98 creating a new post Obama model. Garland, in my opinion, would be able to form the types of relationships that mutually benefit the Court and and the presidents while remaining independent and keeping our government working at its best. His nomination represents the full politicization of the Court and where it may continue to head even beyond contentious election years where a nominee must not only posses unquestionable qualifications but also posses strong relationships across the both parties in the Senate. Long disappeared are the nominations of the Jays, Davises,

Fortrases, and judges selected primarily because of their critical relationships with the Presidents.

This research stands to show that Brandeis within the Washington model produced the most ideal

President Justice relationship and is a model to be duplicated.

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