A Review of Justices and Presidents:  A Political History of Appointments to the Supreme Court (2d edition) by Henry J. Abraha

Portnoy, James S.

English

University of Michigan School of Law

Michigan Law Review Volume 84 Issue 4 Issues 4&5 1986 Justices and Presidents: A Political History of Appointments to the Supreme Court (2d edition) James S. Portnoy University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mlr  Part of the Judges Commons, Legal History Commons, and the Supreme Court of the United States Commons Recommended Citation James S. Portnoy, Justices and Presidents: A Political History of Appointments to the Supreme Court (2d edition), 84 MICH. L. REV. 652 (1986). Available at: https://repository.law.umich.edu/mlr/vol84/iss4/10  This Review is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact mlaw.repository@umich.edu. Michigan Law ReviewJUSTICES AND PRESIDENTS: A POLITICAL HISTORY OF APPOINT-MENTS TO THE SUPREME COURT (2d edition). By Henry J. Abraham.New York: Oxford University Press. 1985. Pp. xi, 430. $24.95.The judicial nominating process has always been inexact, as manypresidents have discovered to their chagrin. For example, after OliverWendell Holmes failed to support him in a major antitrust case, Theo-dore Roosevelt declared that "I could carve out of a banana a Judgewith more backbone than that!" (p. 69). And when a biographer askedDwight D. Eisenhower if he had made any mistakes while president,he replied, "Yes, two, and they are both sitting on the Supreme Court"(p. 263). Eisenhower was referring to Chief Justice Earl Warren andJustice William Brennan. Yet a great deal of consideration precededeach of the above nominations, apparently to no avail.On crucial issues, Justices and their appointing presidents haveoften disagreed. Why is this so? What are the decisional criteria sur-rounding Supreme Court appointments? What should they be? Canpresidents know in advance how their nominees will respond to thequestions before them, and to those not yet before them? These arethe questions which Henry J. Abraham1 poses, and they merit an-swers. Unfortunately, he never answers them.In Justices and Presidents: A Political History of Appointments tothe Supreme Court, Professor Abraham surveys nearly two hundredyears of presidential nominations of Supreme Court Justices and cor-responding judicial performance. The result is a highly accessiblecompendium of the process by which 37 presidents have nominated139 Justices, of whom 102 actually served. But while Abrahamstresses the personal nature of the nomination process, his work isshort on illustrative anecdotes. And while he purports to be writing ahistory, Abraham never manages to place this multifaceted processwithin the context of a unitary theory of history. The omissions are1. James Hart Professor of Government and Foreign Affairs at the University of Virginia.[Vol. 84:648February-April 1986] Federal Courts and the Constitutionkeenly felt. Like Chinese food, Justices and Presidents is momentarilyfilling, but leaves one hungry for more soon afterwards.Structurally, Justices and Presidents is divided into three parts.First, the author devotes several chapters to the hows and whys of theappointment process, reflecting upon the process generally. Abrahamthen devotes the bulk of his work to a brief, informal analysis of eachnomination to the Supreme Court, including unsuccessful ones. Fi-nally, Abraham appends the results of several surveys attempting toassess the performance of Justices and presidents. Among thesesurveys is a 1970 study wherein 65 prominent academics, includingAbraham, rated the Justices in categories ranging from "great" to"failure."' 2 The author refers to this survey throughout as a bench-mark of judicial competence.In Abraham's estimation, four considerations dominate the nomi-nation process: objective merit, personal relationships, balancing rep-resentation on the Court, and "real" political and ideological com-patibility with the President. Not surprisingly, the four overlap some-what, and more than one may be relevant to a single nomination.However, Abraham hypothesizes that most nominations are attribut-able primarily to one of these criteria. For example, Republican Presi-dent Herbert Hoover's nomination of Democrat Benjamin Cardozo isdeemed a "classic" merit-based appointment, and "the finest act of hiscareer as President" (p. 5). In contrast, President Johnson's selectionof Thurgood Marshall and President Reagan's selection of Sandra DayO'Connor reflect the perceived need for black and female representa-tion, respectively (p. 6). Political and ideological compatibility hasbeen a threshold consideration in a large majority of appointments (p.6).Although recognizing the legitimacy of numerous decisional crite-ria, Abraham questions the importance accorded factors other thanobjective merit in the appointment process. His primary concern isthat these factors not deprive the Court of Justices "professionally,intellectually, and morally qualified to serve," whatever their othercharacteristics (p. 341). Citing near consensus among "qualified ob-servers of the judicial function at its apex," Abraham argues that ob-jective merit can be identified and anticipated in potential nominees (p.11). The author's meaning is clear; since merit can be measured, itought not be transcended by other decisional criteria. As examples ofthe risk of using other criteria, Abraham notes the failure to appointthe obviously meritorious Learned Hand and the long service of thebigoted James McReynolds, whom Abraham terms "a disgrace" (p.176).2. The complete results of this survey were published in book form in 1978. A. BLAUSTEIN& R. MERSKY, THE FIRST ONE HUNDRED JUSTICES: STATISTICAL STUDIES ON THE SUPREMECOURT OF THE UNITED STATES (1978).Michigan Law ReviewIn defining objective merit, the author refers to a speech he gavebefore the Supreme Court Historical Society in 1982. There he listedsix factors which he deemed "de minimis qualification guidelines" forSupreme Court Justices: "One, demonstrated judicial temperament.Two, professional expertise and competence. Three, absolute personalas well as professional integrity. Four, an able, agile, lucid mind.Five, appropriate professional educational background or training.Six, the ability to communicate clearly, both orally and in writing,especially the latter."'3 Certainly Abraham's list is appealing. All thequalities he lists are objectively desirable. The question is whetherthey can actually be objectively defined.Therefore, the first problem with Abraham's analysis is that henever sufficiently develops his concept of what objective merit entails.What exactly is "an able, agile, lucid mind"? Does the answer reflect away of thinking or a type of thinking? What is an "appropriate profes-sional educational background"? Is it a degree from the University ofVirginia, where Abraham teaches; or is it a degree from Bob JonesUniversity, recently maligned for its policy of segregation? ThusAbraham ignores the probability that any definition of objective meritnecessarily would take account of just those subjective factors whichhe seeks to exclude. After all, the reference point from which onejudges excellence is inevitably one's own analysis. Jerry Falwell andJesse Jackson are unlikely to overlap much in their definitions of "ob-jective" merit. But even if it were possible to define merit objectively,other considerations have a legitimate place in the process.Indeed, despite the author's rather dubious assertion that theFounding Fathers expected merit alone to determine Supreme Courtappointments (p. 25), any modem observer would be astounded by apresident's failure to consider personal relationships and political ide-ology in making nominations. Supreme Court appointments are forlife. Naturally, presidents take the opportunity to fill the Court withJustices in their own images. To expect otherwise is both unreason-able and unrealistic.Abraham sets out to chronicle "the motivations that underlie theprocess of presidential selection and appointment, the degree and kindof fulfillment of presidential hopes or expectations, and the profes-sional performance of those entrusted with the responsibilities of thebusiness of judging" (p. 12). He proceeds chronologically, after inex-plicably starting with a case study of President Nixon's appointmentsto the Supreme Court. Presumably, Abraham sees the Nixon era as amicrocosm of the appointment process generally. Certainly, Nixon'snominees ran the gamut from highly qualified to wholly undeserving,3. P. 4. An adapted version of the address was published as Abraham, "A Bench HappilyFilled:" Some Historical Reflections on the Supreme Court Appointment Process, 66 JUDICATURE282 (1983).[VCol. 84:648February-April 1986] Federal Courts and the Constitutionfrom judicially experienced to wholly inexperienced, and from readilyconfirmed to summarily rejected.Nixon's first opportunity to appoint a Justice came swiftly, withthe retirement of Chief Justice Earl Warren. Immediately, Nixonturned to Warren Burger of the District of Columbia Circuit, a "pro-totype" Nixon jurist known for his tough law and order views. ToAbraham, Burger represents an ideal combination of ideological com-patibility with the President and objective merit, evidenced by his 13years on the federal bench.4 To Nixon, however, objective merit seemsto have been beside the point (pp. 13-14).Next, Abraham begins to develop his notion that presidents ignoreobjective merit at their peril. He does so by tracing Nixon's unsuc-cessful efforts to place Clement Haynesworth, Jr., and later G. Har-rold Carswell in the seat vacated by Abe Fortas' retirement. ToAbraham, the ease with which Burger gained confirmation reinforcedNixon's fundamental misunderstanding of the appointment process,and precipitated an ongoing battle, during which the Senate repeatedlyconstrained the President from making unqualified appointments (pp.14-21).The controversy raged until Nixon completed his four appoint-ments to the Court, nominating Eighth Circuit Judge Harry Black-mun, former American Bar Association President Lewis Powell, andAssistant Attorney General (and former Supreme Court clerk) Wil-liam Rehnquist. And had it not been for the potential damage to theCourt's prestige, "one might have regarded these struggles as a salu-tary educational experience for America's citizenry" (p. 23). Appar-ently, the lesson is the danger of mediocrity.Few American presidents have misunderstood the appointmentprocess as fundamentally as Richard Nixon, according to the author.Some, like Franklin Roosevelt, focused on a nominee's support for thePresident's immediate goals. Others, like George Washington, empha-sized a nominee's basic philosophy of government. But essentially allpresidents at least considered merit, despite relying on other criteria inthe final analysis.However, even more than merit, presidents tend to emphasize fac-tors related to significant contemporary political problems. Abraham'snarrative demonstrates the multiplicity of influences to which presi-dents have responded. By and large, these influences are pressing andimmediate. Rarely do they leave room for the kind of purity of pro-cess which Abraham seeks.For example, George Washington limited his appointments to out-4. Abraham's high esteem for the Burger nomination is surprising in light of his generallylow opinion of President Nixon. Pp. 13-23. For a decidedly different assessment of the Burgernomination and tenure, see B. WOODWARD & S. ARMSTRONG, THE BRETHREN: INSIDE THESUPREME COURT (1979).Michigan Law Reviewspoken advocates of the Constitution, a new and unexplained docu-ment. In fact, seven of Washington's ten appointees had participatedin the Constitutional Convention of 1787 (p. 72). Chief Justice JohnJay did not participate, but he played an active role in gaining NewYork's ratification. More typical was James Wilson, an initial ap-pointee who later became the nation's first law professor.5 Wilson notonly signed the Declaration of Independence and took part in the Con-stitutional Convention, but is widely regarded as the architect of judi-cial independence (p. 73). In nominating men like Jay and Wilson,Washington sought to invigorate the Constitution, and to establish thejudiciary as a viable and effective branch of government.John Adams appointed only three men to the Court, but amongthem was Chief Justice John Marshall, the only Justice unanimouslyranked "great" in the 1970 survey (p. 81). A lame duck at the time ofthe vacancy, Adams saw his Secretary of State as a Federalist counter-weight to the incoming Thomas Jefferson. Presumably, Adams de-lighted at saddling his rival with a man to whom Jefferson liked torefer as "that gloomy malignity" (p. 82). Later, Adams would callMarshall's appointment "the proudest act of my life" (p. 82). Abra-ham would certainly agree, despite Adams' apparent failure to con-sider the "objective" merit of his nominee.The Civil War dominated Abraham Lincoln's presidency, and like-wise dominated his Supreme Court appointments. Thus Lincoln con-cerned himself almost entirely with a nominee's possible impact on theconduct of the war. And this went beyond just constitutional outlook.For example, Noah Swayne and Samuel Miller were Southerners whoopposed slavery, so Lincoln trusted their politics. But Lincoln's prin-cipal purpose in appointing a Virginian and Kentuckian was to inducethe Border States and upper South to rejoin the Union (p. 116).Swayne and Miller had no effect on the duration of the Civil War, butthey remain striking examples of necessity taking primacy over ideal-ized notions of "objective" merit.Amongst survey respondents, Woodrow Wilson is almost unani-mously considered a "great" President. Moreover, Wilson's presi-dency is replete with examples of idealized concerns transcendingpractical ones, most notably during the League of Nations fiasco. Likehis presidency, Wilson's nominations bred both triumph and failure.In fact, Wilson nominated what some consider both the best and worstjustices of this century - Louis Brandeis and James McReynolds.Abraham spends considerable time assessing the tenures of thesetwo justices, ultimately blaming politics for McReynolds' nomination,while crediting principle for Brandeis'. This seems too pat an explana-tion. Nonetheless, the two were complete opposites. McReynolds led5. Wilson taught at the University of Pennsylvania. P. 73.[V/ol. 84:648February-April 1986] Federal Courts and the Constitutionthe "Four Horsemen" who delayed the New Deal, and was notori-ously conservative. Brandeis was a liberal whom some labeled radical.McReynolds was an anti-Semite; Brandeis was a Jew. McReynolds israted a "failure"; Brandeis is rated "great" (pp. 377-79). That thesame president, presumably using the same criteria, nominated bothmen, represents one of the more interesting aspects of Supreme Courthistory. Moreover, it raises serious questions as to the validity ofAbraham's underlying belief in predictability.No modem president has faced greater controversy in his dealingswith the Court than did Franklin Roosevelt. Furious with the Court'srejection of several New Deal programs, Roosevelt hatched his infa-mous Court-packing plan. But before the plan could be voted on byCongress, the Court began to uphold central New Deal programs, in-cluding the National Labor Relations Act 6 and the Social SecurityAct.7 Thus the logjam was broken and the Court-packing plan ren-dered moot (pp. 207-09).Despite this inauspicious beginning, Roosevelt eventually played agreater role in shaping the Supreme Court than any president sinceWashington; his nine appointments were second only to Washington'sten. And according to Abraham, Roosevelt's nominees were excellent.Among his appointees were two "great" Justices, Hugo Black and Fe-lix Frankfurter, and three "near great" Justices, William 0. Douglas,Robert Jackson, and Wiley Rutledge (p. 210). Yet like most presi-dents, Roosevelt chose his nominees primarily for their support of hisshort term goals. For example, Senator Hugo Black sponsored theFair Labor Standards Act, and was a long-time congressional advo-cate of the New Deal. Felix Frankfurter helped draft New Deal legis-lation. And on the eve of World War II, Roosevelt turned to hisAttorney General, Robert Jackson.As these brief summaries indicate, Supreme Court history is re-plete with stories with unexpected endings. The great strength ofAbraham's work is the ease with which he relates those stories.Whatever its limitations, Justices and Presidents was a labor of love;one which demonstrates the author's deep respect for and understand-ing of its subjects. Abraham knows his subjects intimately; so much sothat the narrative often resembles a personal recollection rather thancollected research. Yet in the end, Abraham has done a better job ofintroducing the players than he has of explaining the game they play.One finishes with a familiarity with Justices and presidents, but withlittle understanding of their places in history. No unifying themeemerges to lend coherence to two hundred years of interesting but dis-jointed vignettes. Nor is there any demonstrated correlation between6. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).7. See Helvering v. Davis, 301 U.S. 619 (1937) (upholding the tax and benefits provisions);Steward Mach. Co. v. Davis, 301 U.S. 548 (1937) (upholding the unemployment provisions).Michigan Law Review"merit"-based appointments and ultimate performance. One cannothelp feeling that something is missing; that the author knows far morethan he has told.- James S. Portnoy[Vol. 84:648

Justices and Presidents:  A Political History of Appointments to the Supreme Court (2d edition)

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Justices and Presidents: A Political History of Appointments to the Supreme Court (2d edition)

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