A SUPREME COURT JUSTICE Is APPOINTED. By David I. Danelski. Pp. 242. Random House, New York, New York, 1964

Morice, Joseph R.

English

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Duquesne Law Review Volume 4 Number 1 Article 19 1965 Book Review: A SUPREME COURT JUSTICE IS APPOINTED. By David I. Danelski Joseph R. Morice Follow this and additional works at: https://dsc.duq.edu/dlr  Part of the Law Commons Recommended Citation Joseph R. Morice, Book Review: A SUPREME COURT JUSTICE IS APPOINTED. By David I. Danelski, 4 Duq. L. Rev. 175 (1965). Available at: https://dsc.duq.edu/dlr/vol4/iss1/19 This Book Review is brought to you for free and open access by Duquesne Scholarship Collection. It has been accepted for inclusion in Duquesne Law Review by an authorized editor of Duquesne Scholarship Collection. BOOK REVIEWA SUPREME COURT JUSTICE Is APPOINTED. By David I. Danelski.-Pp. 242. Random House, New York, New York, 1964. $2.95.Professor Danelski has written. an interesting monograph on the selec-tion and appointment of Associate Justice Pierce Butler to the UnitedStates Supreme Court in 1922. The book is well organized into threeclearly defined sections. Part One examines Justice Butler's backgroundand generally sets the stage for his appointment; the second part coversthe details of Butler's selection; nomination and confirmation; finally,in the last section, there are several "exploratory" chapters in which theauthor aims to consider "some basic problems of political analysis andfashion tools for future research."Part One, like most introductory biographies, is rather brief and has asuperfluity of names and events. Obviously the author's intention was toevaluate Butler's appointment rather than Butler himself; nevertheless,more extended biographical material would have enriched and clarifiedthe story of the appointment. For example, a closer examination ofButler's temperament and personality would enhance the reader's knowl-edge of the man; the references to Butler's judicial background and politi-cal ideas are too general to acquaint the reader with his qualifications forthe Court. In fact, everyone but the reader seems certain that Butler iswell qualified for the judicial appointment; the reader hasn't been toldenough about Butler to decide for himself. Also, it might be interesting todetermine the reasons why Butler was a Democrat; his early life, his legaldefense of the railroads and his intellectual commitment to laissez faireare not generally synonmous with that party's professed tenets in thelate nineteenth and early twentieth centuries.The Chapter on "Harding and Company" is a useful review of thatregime and of the Ohio Gang, and places Butler's appointment in histori-cal perspective.Part Two is the core of the book and is most interesting and informativeon the political factors involved in the selection of Justice Butler. Thepolitical maneuvering when a justice's retirement from the bench isimminent; the various candidates proposed to the President to fill thevacancy; the assessment of the political as well as judicial qualifications ofeach candidate being considered-all of these are part of the dramawhich the author unfolds. Of particular interest is the unfortunate fact,that a candidate can be eliminated immediately if someone of judicialor political influence is opposed to his nomination.t Professor, Department of Political Science, Yale University; Ph.D. University ofChicago; LL.B. De Paul University; B.A. Seattle University.175DUQUESNE UNIVERSITY LAW REVIEWAlthough a multitude of persons were instrumental in obtaining Butler'sappointment, it would appear that the most influential was Chief JusticeWilliam Howard Taft. The author makes it clear that he, ably assistedby Associate Justice Van Devanter, worked indefatigably to influenceHarding and those close to him to give Butler the appointment. Taft'sclose relationship with Harry Daugherty in this regard is interesting andis usually not noted either in general works covering this period or inTaft biographies. Indeed Taft's political manipulations, "quietly and dis-creetly" for Butler's nomination, show him to be a much better politicianon the Court than he was as President. This kind of political finesse wouldhave served him and his party well in 1912.The story of Butler's appointment recalls the inept, if not pitiful, figureof President Harding. The strong pressure on any President to nominatecandidates whom he does not know, and the difficulty of making thefinal decision are evident to anyone familiar with the Presidency. Butwhen these pressures are applied to the genial, inexperienced, suggestibleHarding, they are more potent and make him an easy target for thosewho would manipulate him. Considering the influence which Daughertyand Taft had on Harding, it is fortunate that they were in Butler'scorner; otherwise a man of lesser ability might have been appointed.Second thoughts on Harding's personality suggest that it was fortunatethat he had others to advise and manipulate him; otherwise his termcould have been much more disastrous than it was.Although Danelski recognizes the impossibility of being completelyobjective, he has made a commendable effort in this direction. He presentsthe various contemporary arguments for and against Butler and otherswho were being considered for the court appointment. He discusses theSenate liberals, under Norris and La Follette, who fought Butler's con-firmation on principle even though they knew the fight was fruitless.The author, although not seemingly impressed with the arguments of theliberals against Butler, does note later in his chapter on "Consequences"that many of the liberal's fears of Justice Butler's judicial opinions weresubsequently justified.The last part of the book is problematical. Basically the author isattempting to analyze the reasons for the appointment of Justice Butlerby use of what may be called the scientific method. To do this, he utilizesmathematics, physics and psychology, together with the particular andspecialized vocabulary of these disciplines. He reviews such concepts aspower, influence and personality and then applies them to the Butlerappointment. Even analytical charts are used as part of the scientificapproach.If one agrees that this section needs to be included in the book, thenit may be suggested that a serious revision is necessary with a view to-[Vol. 4:175BOOK REVIEWSward clarification. The section is heavy with technical and conceptualterms which, although they might activate the intellectual enzymes of aphilosopher, are less meaningful to the college student and certainly tothe general reader. Danelski's scholarly approach to an analysis of Butler'sappointment is certainly commendable. But he complicates this unneces-sarily; it could be done more simply and directly, with less technicaljargon and verbal involvement. One forceful chapter, an expansion ofhis "Epilogue," could draw all this together in a meaningful and scholarlymanner. As it stands now, Part Three is confusing, loses its force andfails to achieve its purpose.This recommended clarification is predicated on the assumption thatthis last section is really necessary to a fuller understanding of Butler'sappointment. Danelski obviously believes that it is necessary, and ex-presses the hope that, with his inclusion of this analysis, "the value ofthe study will go beyond the description and explanation" of Butler'sappointment to the Court. But it is debatable whether the study needs to"go beyond" the appointment! Without Part Three, the study is a wellintegrated contribution to our historical and political knowledge. It mayalso be asked whether Part Three, at least in its present form, lendsany real "value" to the study in the final analysis!In general, the book is well written for the college student and for theenlightened layman. It would be most valuable as collateral reading inAmerican Government and American History courses. The author writeswell and sometimes with an effective dramatic touch, particularly at theend of a chapter.Danelski's bibliography is rather impressive. In addition to the effectiveand full documentation from manuscripts and other primary sources, heutilizes interviews and unpublished doctoral dissertations.One final thought: Since sources were available to prepare this study ofButler's appointment, then additional research may uncover enoughmaterial to produce similar studies of other Supreme Court appointments.If even a dozen appointments to the Court were as interesting and politi-cally-oriented as Butler's, a series could be developed to further explorethe political ramifications of judicial appointments. This would be a con-tribution to political science and to constitutional history. For example, theappointments of Justices Brandeis and Black, attendant as they werewith colorful and controversial circumstances, might be a point of depar-ture for such a series. In any event, Professor Danelski's book is apioneer study and a scholarly contribution to historical and politicalliterature.Joseph R. Morice** Professor of History, Duquesne University.1965-1966]

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