The controversy which arose in the summer of 1968 over the nomination of Mr. Justice Abe Fortas to be Chief Justice of the United States has raised serious questions about the proper role of the Senate in advising and consenting to such nominations. That Sen. Hart’s remarks may be read in perspective, it should be mentioned that he supported strongly the nomination of Mr. Fortas. Hart believes that were it not for the unique circumstances of the summer of 1968- the erosion of the power of the President with the approach of a political campaign, the nearness of the end of the legislative session, and the opportunity the nomination afforded for political attacks on the Court and the President-the nomination would have been endorsed by a majority of Sen. Hart’s colleagues. If his view is correct, then the nomination procedure established by the Constitution was thwarted by a minority of the Senate who turned events to their advantage and were indifferent to the support given the nominee by the bar, by the academic community, by businessmen who recognized his perceptive handling of their problems and by the deprived members of our society who felt his concern for them

Hart, Philip A.

English

University of Michigan School of Law

University of Michigan Journal of Law Reform Volume 21969 The Discriminating Role Philip A. Hart United States Senate Follow this and additional works at: https://repository.law.umich.edu/mjlr  Part of the Judges Commons, and the Supreme Court of the United States Commons Recommended Citation Philip A. Hart, The Discriminating Role, 2 U. MICH. J. L. REFORM 305 (1969). Available at: https://repository.law.umich.edu/mjlr/vol2/iss2/4  This Article is brought to you for free and open access by the University of Michigan Journal of Law Reform at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in University of Michigan Journal of Law Reform by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact mlaw.repository@umich.edu. THE DISCRIMINATING ROLEPhilip A. Hart*The controversy which arose in the summer of 1968 over the nomi-nation of Mr. Justice Abe Fortas to be Chief Justice of the United Stateshas raised serious questions about the proper role of the Senate inadvising and consenting to such nominations. That my remarks may beread in perspective, it should be mentioned that I supported strongly thenomination of Mr. Fortas. I believe that were it not for the uniquecircumstances of last summer- the erosion of the power of the Presidentwith the approach of a political campaign, the nearness of the end of thelegislative session, and the opportunity the nomination afforded for polit-ical attacks on the Court and the President-the nomination would havebeen endorsed by a majority of my colleagues. If my view is correct,then the nomination procedure established by the Constitution wasthwarted by a minority of the Senate who turned events to their advan-tage and were indifferent to the support given the nominee by the bar, bythe academic community, by businessmen who recognized his per-ceptive handling of their problems and by the deprived members of oursociety who felt his concern for them.The Fortas controversy raised additional questions about the role ofthe Senate and that of an individual member in confirming judicialappointments. To what extent, as a member of the Judiciary Committeeand as an individual Senator, was I to take into account my pi"ilosophi-cal agreement or disagreement with the nominee? Should a sitting Jus-tice, subjected to the confirmation process just three years earlier, berequired to appear before us again at all? Was it proper for me in com-mittee to probe the nominee's prior judicial record or to seek to defendor challenge particular opinions? What weight was I to give the nomi-nee's relationship to the President or to his writing, speaking and teach-ing activities outside the Court?These questions do not exhaust the possibilities. Many of my col-leagues thought, and have frequently proposed, that the Senate shoulddo more than simply say "yea" and "nay" to nominees of the President.Some, for example, would attempt to restrict the President in the selec-tion process, requiring him to choose Supreme Court Justices fromamong sitting federal or state judges or from lists of people drawn up bybar associations or other supposedly elite groups. Others would settlefor attempting to pin a nominee down as to his views on particularissues, whether they be matters of obscenity, civil rights, or the relation-ship of government to business. Some would attempt to assess a nomi-nee's relative hardness or softness on crime, as though that were asufficient test of judicial fitness.*United States Senator from Michigan.ProspectusFrom my experience I have little faith in any of these mechanicalsolutions, nor does history give me any cause for optimism. Consider thedifficulties in attempting, either by legislation or by more informalmeans, to define in advance the categories from which a President maynominate a Justice. The history of the Supreme Court abundantly dem-onstrates that great Justices and mediocre ones have come from ex-tremely disparate settings. State supreme courts, for example, havesupplied great Justices, including Holmes from Massachusetts and Car-dozo from New York. These courts have also supplied mediocritieswhose names are better left unremembered. Moreover, for a variety ofreasons many state courts have today become relative backwaters in thelaw. While this is not true of all state courts and there are state judgestoday who certainly would grace the Supreme Court, how does onedefine in advance a category which would limit the President to the"great" state judges and rule out the mediocrities and the politicalwheelhorses? The same can be said for the federal bench: there are greatfederal appellate and trial judges and there are less distinguished ones.A survey of the Court's history suggests that any effort to definecategories from which Justices may be selected will neither guaranteegreatness nor preclude mediocrity. Chief Justice Marshall, consideredby many the greatest man ever to sit on the Court, had virtually no legaleducation and little experience as a lawyer. He was a soldier, stateassemblyman, Congressman, diplomat (accused by- historians of attempt-ing to bribe the French), and Secretary of State. Those who propose torestrict the scope of the President in selecting nominees would certainlybar a man like Marshall. Or consider Brandeis, a successful corporatelawyer who had become a controversial social reformer and presidentialconfidante. The legal establishment of this country, including all thenliving former presidents of the American Bar Association and the headsof leading universities, fought the appointment of Brandeis as a SupremeCourt Justice with a venom unprecedented in our history. Think howmuch poorer this nation and its judicial heritage would have been hadthey prevailed. Should we exclude professors, and close the Court tosuch different men as Story, Rutledge, Frankfurter or Douglas? Orshould we preclude the selection of attorney generals, knowing that thatcategory has supplied such different men as Chief Justice Taney, thereactionary McReynolds, the liberal Murphy of Michigan, or Stone andJackson? What of prosecutors? On the present Court the most ex-perienced prosecutor is Chief Justice Warren, hardly a hero to thosewho believe the Court lacks prosecutorial zeal. Are corporate lawyers tobe excluded, although that class has contributed Hughes and Harlan?And what about country lawyers like Jackson and Black, the one by wayof the Justice Department and the other by way of the Senate? Ifanything, history teaches that no door should be closed and that diver-sity is the goal.(Vol. 2:2The Fortas ControversyHow deeply should we ,probe the background of a nominee? Car-dozo's father was a Tammany Hall judge, yet his son became one of thesaintliest figures in Anglo-American law. Stone was a rebel, both as acollege student and later as a law teacher. He was also a successful WallStreet lawyer, an Attorney General, and a great Justice. Into whichcategory does he fit?The more I read, the less confidence I have, not only in mechanicaldevices, but in any kind of prediction. In the 1920's, for example, Senateliberals engineered the defeat of the nomination to the Court of federaljudge John Parker. Parker was alleged to have made an anti-Negro slurin a speech and organized labor was angry at his decision in a labor case.Parker became one of our great federal appellate judges. The man theSenate accepted in his place had been a vigorous prosecutor of theTeapot Dome crowd, but on the bench Justice Roberts cast the key votein the early decisions defeating major New Deal proposals favored bythe very men who had achieved his nomination.Toward Clarification of the Senate's RoleI appear to be advocating that the Senate continue to muddle along asit has done in the past: approving most appointments, but occasionallybeing cantankerous. But this does not mean that there are not lessons tobe learned and to be applied arising out of our experience last sessionwith the Fortas nomination.First, it is the unmistakable teaching of the recent controversy thatuse of the filibuster, an anti-democratic device in the legislative process,is intolerable in the process whereby the Senate advises and consents toa nomination to the Court. Were it not for the filibuster, Mr. JusticeFortas would now be Chief Justice. He had the support of a majorityof the Senate. In the hands of a- well-organized but small band of men,however, the filibuster frustrated the will of the majority. To allow thisto happen again would be to threaten every judge in the land: if hewishes promotion within the federal court system, he had better trim hissails and decide cases not according to the Constitution and the laws ofthe land but with an eye to the prejudices of an unrepresentative groupof Senators. Such a concept is destructive of the separation of powerslaid down by the Constitution, and it is outrageous that this doctrineshould become part of the banner of men who proclaim to be strictconstitutionalists. As the Fortas experience demonstrates, the time hascome to extricate the filibuster from the Senate, root and branch.Second, the Fortas controversy revealed to me both my own and oursociety's uncertainty about the role of a Justice. Do we want menappointed to the Court to sever all ties with the forces which broughtthem to the Court? Is it appropriate, for example, for a Chief JusticeMarshall to continue to serve as Secretary of State after his entry intoApril 19691Prospectusservice on the Court? I suppose this question is academic today, butthere is no law which forbids such overlapping functions, and Marshalldid fill the two chairs for some six months. Do we want to erect acomplete barrier between a Brandeis and a Wilson, a Stone and aHoover, a Frankfurter and a Roosevelt? Would these Presidents haveappointed these great Justices had they known that in so doing theywould deprive themselves of the advice of men whose counsel-theyvalued, perhaps more than any others? Do we want to prevent a Storyfrom almost single-handedly creating American legal education; or canwe say to a Douglas or a Black or a Fortas, "you must not write forpublication, or speak your views, or teach youngsters"? Shall we saythat they may do so, but may not receive compensation as do Senators,1Congressmen and other public officials? Do we want a firm rule at all?Can we not honor both those Justices and judges who devote themselvessingle-mindedly to their judicial work and those who enrich the potentialof other departments of public service? Or is the risk of diverting judicialenergies into other areas and perhaps enveloping the Court in politicalcontroversy too great?The time has come for the Senate, for the bar, and especially for thelaw schools to focus on these problems. I doubt that the answer will befound in legislation. However, trenchant and fair-minded analysis ofthese issues, raised above the.recent controversy, could influence futurePresidents and the Senate, in addition to furnishing a guide to membersof the Court. What must be done is to create a consensus as to whatjudicial propriety requires: None now exists.The third lesson to be learned from the recent experience is that theprior judicial record of a nominee, like his prior legal career, is at best anuncertain guide with limited utility in determining whether his nomi-nation should be confirmed and dangerously susceptible to misuse andabuse. I believe it is totally unrealistic and, indeed, foolish to hold thatthe Senate cannot properly consider a nominee's prior record, includingjudicial opinions he may have written. At the same time, I greatly doubteither the value or the wisdom of having a sitting Justice, whose opin-ions speak for themselves, personally testify before the Judiciary Com-mittee. So long as the Senate has the power to say "no," those who wishto say "no" will avail themselves of whatever weapons are at hand.When the nominee is already a judge, these weapons will include hisprior opinions. Indeed, a Senator who is asked to assess the fitness ofthe candidate cannot decline to see what he has written and how he hasvoted.1 The writer does not accept "honorariums" or payment for lectures or speeches. But it isa widely practiced and presumably approved pattern.[Vol. 2:2The Fortas ControversyWhat struck me, especially during Judiciary Committee sessions onthe recent nomination, was the danger of irresponsible use of a nomi-nee's prior record. Some examples will illustrate the magnitude of thisdanger. One of the chief issues which arose last year concerned Mr.Justice Fortas' position on the terribly complex subject of obscenity.Here was an opportunity for critics of the present Court, well organizedand well financed, to use a controversial subject to punish a sittingJustice and thereby threaten every other judge in the country. Therecord gave these forces very little support. Mr. Justice Fortas had infact contributed the deciding vote which sustained the conviction ofRalph Ginzburg. 2 Until he came to the Court, no obscenity convictionhad been sustained on the merits for more than a decade. Moreover,although Mr. Justice Fortas had not himself written an opinion for theCourt in any obscenity case, one of his separate opinions made clear hisview that the states had ample power under the Constitution to protectchildren from obscene materials and to protect the public at large frompanderers. But those who opposed his nomination totally overlooked hisrole in these cases, choosing instead to fasten upon his votes in anumber of minor obscenity cases decided by the Court without opinion.I deny anyone to draw any intelligent conclusion with respect to theJustice's position on the law of obscenity from these cases. The cases, asformer Dean O'Meara of the Notre Dame Law School has pointed out,bristle with alternative grounds for decision relating to both proceduraland substantive issues. Some cases involved genuine efforts at artisticexpression, however misguided, while others involved no more thanhard core pandering. Critics of the Justice did not make these dis-tinctions. They used little more than case names as sticks with which topummel him. The same tactics characterized the attacks on the nomi-nee's role in such sensitive areas of the law as criminal procedure andcivil rights.How unfair these tactics are! Even when a Justice has written amajority opinion for the Court or has written a dissent, one cannotrightfully assume that one knows his entire position. It is impossible forSenators carefully to examine the records in the thousands of caseswhich come before the Court, much less the records on which a nomineefrom a state or lower federal court has acted. Nor do we know, and itwould be highly improper for a nominee to tell us, what alternativesfaced him and had an influence on his vote. Did he vote for a positionwith which he did not fully agree in order to stave off an even moredistasteful result? Did he vote out of concern for the effect of this caseupon another case, or upon another area of the law? Surely the fact that2 Ginzburg v. United States, 383 U.S. 463 (1966).April 19691Prospectusa Justice joins the opinion of one of his brethren does not establish thathe agrees with every word, or that he would not have written the opiniondifferently, or even that he would not have come out the other way if hehad the votes.Even more disturbing, indeed frightening, were the inquiries of someSenators as to the identity of clients the nominee had represented as anattorney. It was improper to require Mr. Justice Fortas to justify thepursuit of his professional duty in defending victims of political hysteriawhen that was decidedly unfashionable.In short, our recent experience demonstrates to me the need for fargreater responsibility in the use of the ammunition provided by a nomi-nee's prior opinions. Of course, the same is true when a state or federaljudge is appointed either to the Supreme Court or to a federal appellatebench. It is totally unfair for the Senate to attempt to second guessopinions written in the heat of work or votes necessarily cast with littleor no explanation. One might counter that part of the fault lies with thejudges who have a duty to explain carefully and accurately what they aredoing. One might hope that this responsibility were truly reciprocal: thecourts would show legislative handiwork sympathetic understanding ofthe factors affecting the writing of legislation and Congress would givethe same consideration to a judicial nominee's written opinions.The fact of the matter is that, if we are to continue selecting ourjudges in the present way, the treatment accorded prior judicial opinionsand legal background must be made more responsible. In an age whenprofessors and students, particularly law professors and law students,are so vocal on so many issues, one might have expected these groups tohave addressed themselves to these matters last summer, as many didwith respect to the use of the filibuster. But few bothered to cry outwhen Mr. Justice Fortas was being pilloried for the Mallory3 andMcNabb4 decisions which were decided long before he came to theCourt and in which the Court relied not on constitutional interpretationbut on the Federal Rules, an area in which Congress has always hadpower to act. Only a few joined Dean O'Meara in his brave effort toclear the air on the obscenity issue. In my judgment a certain shameattached to this general silence.But that is spilled milk. The profession, and especially those whoteach and write, ought now to correct those errors of omission and helpdefine for us some guidelines in dealing with the problems I havediscussed. To arms! i.e., to thought!3 Mallory v. United States, 354 U.S. 449 (1957).4 McNabb v. United States, 318 U.S. 332 (1943).[Vol. 2:2

The Discriminating Role

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The Discriminating Role

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