The Making of Supreme Court Justices

...He does not consider this an indispensable qualification, he has said, but believes that men who have proved themselves on the firing line as lower court judges, and have a "track record," should have an edge over other candidates...

...In short, there must be deference both ways...

...No one accused him of a lack of professional distinction...

...Thus, he did not consider that there was a Jewish, Catholic or Negro seat, or presumably a Southern, Western or Northeastern one either, even though he said he would see to it that the names of people representing all segments of the country came before him in the process of selection...

...There is no significance, though, in the fact that Williams was a member of the President's official family, or that Grant's nomination of an earlier Attorney General was also rejected, since numerous other Cabinet or sub-Cabinet members have won easy confirmation...

...The issue would be wholly different, he added candidly, if the charges against Carswell were supportable...

...Nevertheless, as Charles Warren reports in his The Supreme Court in United States History, there was a widespread impression that Williams lacked "great talents...

...A closer parallel may be found in President Ulysses S. Grant's encounters with a recalcitrant Senate 20 years earlier...

...he did not know either Judge Haynsworth or Judge Carswell, and did not seek to meet them prior to sending their names up to the Senate...

...Clearly, he has the initiative...

...A feeling undoubtedly prevails, too, that seats on the Court should go to men (and women) who have either attained some measure of distinction in their work or come to the public's notice because of some achievements that are out of the ordinary...

...that is why charges of racism became a crucial issue in the struggle over Judge Carswell's confirmation...

...For a time Cushing's prospects looked good, according to a contemporary comment quoted by Warren, chiefly because of the fear that "if he was rejected, a worse man might be produced...

...Tho President wished to place a representative Southerner on a bench where the only remaining Justice of white Southern origins is Hugo L. Black, who is 84 and was appointed 33 years ago...

...Other Presidents have not cared to so insulate themselves...

...Court of Appeals for the Second Circuit in New York...

...But in neither the Haynsworth nor the Carswell case, and only in some measure in the 1968 Fortas case, did most senators balk because of ideology differences alone...

...Grant withdrew this nomination, too...

...The Senate was looking not for the average, and hence after all fallible, in ethical behavior, or for the mere absence of culpable actions, but for the most elevated and scrupulous conduct...

...Yet obviously, if the Senate rejects a nominee merely because it dislikes a choice or believes it would have made a different one itself, it is denying the Presidential prerogative and producing deadlock...

...to draw boundaries around the respective functions of Senate and President—all this necessarily seems to diminish the position, and to belittle the task of finding men fit for it...

...President Herbert Hoover nominated New Yorkers Charles E. Hughes and Benjamin N. Cardozo, the latter selection placing a second Jew on the bench alongside Brandeis...

...This sort of long-range goal has always been a consideration in selection...

...Certainly, what we have witnessed is most unusual...

...Richard Nixon is plainly aware of all this, and has said that he does not propose to appoint personal friends—even those with the professional attainments of Herbert Brownell, Thomas E. Dewey or Charles Rhyne—or political associates who, in what he referred to as the Washington vernacular, would be considered cronies...

...Since Justices are cynosures and exemplars, it goes without saying that they ought to be men of integrity whose deportment falls well within the norms of the day...

...Something of intuition, indeed of mystery must enter into choosing the men who can fill it...

...Only Presidents who have not cared, or who have been generally content with the direction taken by the Court, have failed to look for men with inclinations and preferences in matters of policy and the function of judging that the Chief Executive approved of...

...As for age, most Presidents have considered relatively advanced years a disqualification...

...Nixon at first did not interview prospective nominees...

...It takes three years, Justice Brandeis once said, for a man to find himself in the movements of the Court, and some years more for him to be fully effective...

...Roosevelt's friend Justice Frankfurter wrote him that Judge Hand was "the only man worthy to rank with Holmes, Brandeis and Cardozo...

...The Senate's responsibility and prerogative are least ambivalent when its investigation of a nominee reveals information casting doubt on his character, conduct or ethics...

...Yet the bulk of the lower Federal courts' business, let alone the state courts', is very different from that of the Supreme Court...

...Nixon wants a less intrusive body than we have had in recent years, one more prone to leave the initiative for reform and change to the President, Congress, and state and local institutions...

...Grant's first two attempts to fill the Chief Justiceship suffered from an aura of cronyism, which in its way played a role in Justice For-tas' failure to attain the office...

...There is nothing in being black, Jewish or Southern as such that can reasonably be thought to disqualify a man from doing justice, say, to Catholics and Midwestern-ers, although he may perhaps see an issue of policy from a perpective somewhat different than theirs...

...Judge Carswell, on the other hand, was charged —if that is the word—with being mediocre...

...Justice Frankfurter once made a thorough study of the relevance and value of prior judicial experience, examining the careers of 90 Justices who had sat on the High Court...

...Still, Nixon's emphasis in his remarks to the press following the Burger appointment was not misplaced, nor was it disingenuous...

...He believes that legislatures should be very conservative about overthrowing laws passed by elected representatives at either the state or Federal level...

...The Executive, for its part, should resist the temptation to swallow up the Senate's consenting power, no less explicitly conferred by the Constitution...

...Louis D. Brandeis met that description when Woodrow Wilson nominated him, Felix Frankfurter and Robert H. Jackson certainly did when Franklin D. Roosevelt selected them, and Byron H. White was John F. Kennedy's friend...

...To be sure, the expectation cannot have been —and the practice historically certainly has not been —that the Senate is to concede all and exercise no judgment of its own...

...Still, the judicial attitudes the President has in mind are likely to remain relevant for a good long while, and in the short run their moderating, and possibly modifying, effects on the work of the Warren Court are fairly predictable...

...One Senator," writes Warren, "said that there was no need of a bill to abolish the Chief Justiceship, for the nomination of Williams had already done that...

...He considers it his prerogative in making appointments to try to affect the future direction of the Court, understanding of course that he cannot —and should not, if he could—hope to govern results in specific future cases...

...In a letter to Senator William B. Saxbe (D.-O...

...Hardly anybody knew Melville W. Fuller when President Cleveland took him out of a Chicago law practice and made him Chief Justice, but the appointment was a wise one...

...The nomination was soon in trouble, and to save the President's face his supporters in the Senate thought of the extraordinary expedient of abolishing the office of Chief Justice as an Executive appointment, leaving to the Associate Justices the task of selecting one of their number to preside...

...The man Grant did produce next was Morrison R. Waite of Ohio, whom the Senate confirmed as Chief Justice within two days...

...Preventing deadlock and maintaining the integrity of functions in a government of separated powers is a mutual interest shared by Executive and Legislative branches, not merely a Senate obligation...

...And so Theodore Roosevelt appointed William H. Moody of Massachusetts to a Court on which Oliver Wendell Holmes of the same state already sat, while Holmes and Brandeis, also of Massachusetts, served together for many years...

...Like Nixon, they have wanted to affect the direction of the Court, which is the slowest moving of our governing institutions...

...to state them (too negatively, in terms of what a man should not be...

...Nixon may make a bit too much of his prerogative and his emphasis on a judicial track record is misplaced and unduly restrictive...

...senator, and before that territorial chief justice of Oregon...

...No man should be barred from the Court because his presence would make two, three or even more of his kind...

...The senators must be in a position to require the President to make some ideological concessions, just as he is entitled to expect the same from them...

...He is looking, the President said, for men who will be "strict constructionists...

...Attorney General under President Franklin Pierce, and a judge of the Supreme Judicial Court of Massachusetts...

...Sometimes a fellow gets estopped by his own words and his own deeds— and it is no fun for the fellow when that happens...

...At Williams' request, Grant withdrew the nomination...

...He felt the relationship between him and the Justices should be cordial, but at arm's length...

...Like many professional observers of the Supreme Court...

...Two rather special criteria for Supreme Court appointments have to do with ethics and age...

...It matters not only because the affirmative implications of a quota are to be avoided, but its negative ones as well, as historically they have been...

...Nor is there really any hard and fast tradition against appointing friends of the President...

...The Constitution mandates the President alone to nominate Justices, and only then to take the advice and consent of the Upper House before actually appointing them...

...But being a white supremacist or an anti-Semite can be viewed as disabling a man from doing justice to Negroes or Jews...

...The President expressed these sentiments while talking informally to reporters in May 1969, after the Burger nomination...

...The record, in other words, is made on another and different track...

...The job is arduous, and absolutely no one comes to it fully equipped...

...At the same time, he touched on other criteria of selection, asserting that he did not intend to aim for the achievement of racial, religious or geographical balance on the Court...

...last April 1, urging support of Carswell, Nixon said that the question was whether he was to be "accorded the same right of choice in naming Supreme Court Justices, which has been freely accorded to my predecessors of both parties...

...Like President Eisenhower in all his appointments subsequent to Chief Justice Warren's, Nixon places great stress on previous judicial experience, especially in the lower Federal courts, as an assurance of competence...

...But to endeavor over the long run to have Justices on the Court who are drawn from most of the large-interest, regional and other distinct groupings in the country— that is quite something else again...

...What Nixon meant, one may assume, is that he would not be bound by a quota and would not label particular seats...

...Attempting to isolate criteria for the selection of Justices of the Supreme Court...

...William Howard Taft, who made six Supreme Court appointments, remarked upon leaving the White House that this reconstitution was his proudest achievement...

...One criterion for selection that President Nixon has repeatedly avowed is ideological...

...Other nominations have been controversial, of course, but from Parker in 1930 to Fortas in 1968, none was seriously in jeopardy...

...But since he thought them baseless, he believed his prerogative was at stake...

...His conclusion: "One is entitled to say without qualification that the correlation between prior judicial experience and fitness for the functions of the Supreme Court is zero...

...Since the names on initial rosters run into the dozens, much weeding out is necessary before a list of manageable proportions can be presented to the President with enough supporting material for him to be able to apply his criteria for selection...

...Nixon has invoked the late Justice Felix Frankfurter as a recent example of a judge who viewed the judicial function in a manner agreeable to him...

...To find precedents for the tribulations of the past two years, one has to look back to the 19th century...

...What, in fact, are the criteria for selection that should be used...

...And it was amply demonstrated during the hearings on Justice Fortas' nomination that the nation is made uneasy by evidence that a member of the Court is, or is likely to be, a close personal and political adviser of the President...

...Perhaps he feels this way because a judicial track record not only provides a basis for judging intellectual ability, but best enables the President to determine whether a candidate fits his own desired ideological profile...

...And before nominating Judge Blackmun, Nixon did have him in for nearly an hour's discussion...

...In the 1940s the Court had two Kentuckians, Fred W. Vinson and Stanley F. Reed, and four Southerners...

...the oldest man ever named an Associate Justice was Horace H. Lurton, who was 65 in 1910 when he took his seat...

...Three of these Southerners, Vinson having died, were still there in 1954 when Brown v. Board oj Education was decided...

...But if, as with Grant, the President's judgment seems unusually subjective and proves dubious when tested against more objective criteria, there will be difficulty...

...The Senate readily consented to Warren E. Burger as Chief Justice in the spring of 1969, but the previous summer President Johnson's nomination of Associate Justice Abe Fortas for the same position had to be withdrawn in the face of unrelenting opposition...

...If only for a few years, Hand could not but bring distinction to the Court and new lustre to the President who made it possible...

...It became obvious when Carswell's nomination was substituted for Hayns-worth's that such a determination was at play...

...Nor should the Senate refuse confirmation because it finds, after assessing a nominee's ideological orientation, the President is trying to move the Court in a direction a degree or two away from what it would prefer...

...The words 'prayerful consideration,' " the President finally wrote Frankfurter, "rarely mean what they say...

...But it is natural to insist in addition that they conform to the highest ethical standard, indeed that in their persons they set it...

...In the present case they do...

...Of course, it is possible to be beguiled by appearances in this respect, and an element of subjectivity is unavoidable...

...If anyone was ever capable of finding his way in the Court in less than three years, it was Judge Hand, and Roosevelt would not have regretted making the exception...

...He was thought to be perfectly respectable, yet not first rate—a judgment that proved fairly accurate in the course of his 14-year tenure...

...For the office, though its influence can be romanticized and overstated, is powerful—and it is splendid...

...The President knew Chief Justice Burger and was familiar with his work before appointing him...

...Those charges arose from evidence the President did not have before him when he made the nomination...

...The Senate voted down Judge Clement F. Haynsworth last November, and Judge G. Harrold Carswell on April 8. Such a sequence of events runs counter to our expectations, and the question naturally arises whether the appointment procedure has gone awry in both or either of its aspects: nomination and confirmation...

...While his nomination was pending, a letter from Cushing to Confederate President Jefferson Davis was discovered, dated March 21, 1861...

...With one exception, the very few who were appointed at 65 or over were Chief Justices...

...In other words, he feels no obligation to fill a seat in accordance with a traditional designation, whether or not he can find a candidate fitting the label who also meets has own requirements...

...but he was 74 years old and had an unfortunate reputation for instability, both in politics and of character...

...In 1942, FDR was urged to appoint the late Learned Hand, then age 71 and a judge of the U.S...

...That phrase has meant many things to many people within the context of American Constitutional history, but the sense of the President's usage is fairly definite...

...that would amount to abandoning its role altogether...

...Although innocent enough, bearing no indication of disloyalty to the Union, it was friendly in tone and caused a sensation...

...Thus, while the Constitution does not say Supreme Court Justices, or other judges for that matter, need be lawyers, tradition decrees it—albeit without demanding only lawyers steeped in legal work...

...But he refused, in part because during his Court-packing fight five years earlier, he had himself complained of the great age of some of the Justices...

...For he was not filling a Southern seat, he was seeking a Southerner—and the distinction matters...

...One can agree that on all matters in the appointment process the Senate should meet the President half way, but where ethics and character are involved this cannot mean the Senate must simply take the President's word on questions of fact...

...The Senate's function begins after the Chief Executive has performed his...

...Vinson, Black, Reed, and Tom Clark...

...Following the death of Chief Justice Salmon P. Chase in 1873, Grant nominated his Attorney General and good friend, George H. Williams, who had also been a U.S...

...Largely because of this demand, Judge Haynsworth—an honorable man against whom no accusation of gross transgression was made, nor even a charge comparable to the one that drove Justice Fortas from the bench—was denied confirmation...

...Judicial policy is generally made bit by bit, in small strokes...

...Ideally, Presidents look for nominees under 60, and certainly under 65...

...Not all leaders of the legal profession or well-known senators or Cabinet members have the capacity to make a good Justice, and not all people of extraordinary aptitude are famous or have been decorated with the conventional indicia of achievement...

...Yet his troubles, while plainly compounded by bad luck and judgments made on incomplete information, may in the end be traceable paradoxically to excessive caution, excessive reliance on system, and an earth-bound hesitancy to brave the mysteries of choice...

...Unquestionably, the President's ideological criterion is both comprehensible and intelligent, although he can never be sure that he is acting on it effectively because it involves making prophecies about the way judges will decide unforeseen cases in an unknown future...

...This is not to say the Senate should accept an effort to radically alter the course of the Court that it opposes...

...Besides, Presidents like to think that they are influencing not only immediate policy but a distant future...

...He then brought forward another friend, Caleb Cushing, who had been U.S...

...again, the result would be deadlock and a denial of the initiative the Constitution lodges in the President...

...The Senator soon regretted his statement, even though made merely for the sake of argument, because he found that most people indeed expect mediocrity to preclude elevation to the Supreme Court...

...The charge did not help him, but what really hurt was Senator Roman Hruska's (R.-Neb...

...Both were lawyers of substantial reputation, but were rejected for purely partisan reasons...

...Before Judge Haynsworth's rejection, the last time a Supreme Court nomination had been voted down was 40 years ago, when the Senate refused to confirm Judge John J. Parker of North Carolina...

...He disagrees with the attitude toward its function exhibited by a majority of the Warren Court, and with much of what it did...

...What is in question, rather, is the impact of attitudes and judicial philosophy on the general drift of decisions in the aggregate...

...At the same time, no President can fail to consider as well a candidate's professional qualifications and personal traits...

...But even if that had not been the case, surely the Senate was within its Constitutional right in judging the accuracy and relevance of the data submitted to it...

...In 1893-94, for example, during the middle of the second of his two nonconsecutive terms, President Grover Cleveland nominated successively two New Yorkers, William D. Hornblower and Wheeler H. Peckham...

...Nevertheless, a certain air of the gray and ordinary about the career of Judge Clement Haynsworth definitely hurt his chances of confirmation, whether or not the implicit evaluation of his intellectual capacity was fair...

...apparent concession of the point and defense of Carswell on the ground that mediocrity ought to be no bar to appointment...

...The appointment process, after all, is the sole form of political control over an institution that is otherwise utterly independent, and yet exercises power and influence in the society...

...But it is their interests that deserve recognition, not strains of prejudice and passion that are offensive to others and inconsistent with the mission of justice...

...Facts of this sort were uncovered by the Senate concerning Justice Fortas when Johnson nominated him for the Chief Justiceship, and concerning Judges Haynsworth and Carswell...

...In any event, selection by ideology is certainly historically legitimate...

...Have the President and the Senate come to misunderstand the process and their relationship in it...

...Were you to name Learned Hand, five minutes after the news flashed to the country, all considerations of age, geography and the like will be seen to have had no relevance...

...Necessarily in some instances, at an early stage of the appointment process the decision is reached to give preponderance to a regional, racial or religious specification, other things being roughly equal (or within a certain tolerance, sonic-times less than equal...

...Regional and other group considerations, though by no means rigid requirements, are particularly important when any segment of the nation has a sense of grievance or exclusion...

...The episode, however, offers no apt analogy to the troubles of Presidents Johnson and Nixon...

...Thinking Aloud THE MAKING OF SUPREME COURT JUSTICES BY ALEXANDER M. BICKEL Of the last four nominations to the Supreme Court prior to the approval this month of Judge Harry A. Blackmun, one was withdrawn, two were rejected, and one went through routinely...

...While there is no prior political or other outside clearance for Supreme Court nominees in the Nixon Administration, suggestions are channeled to the Attorney General and vetted by him and his subordinates...

...to fit these criteria into neat categories...

...If a man is black, Jewish or a Southerner, his presence on the Court constitutes an acknowledgment of the legitimacy and equality of his group or region, and very broadly speaking, a kind of assurance that the general outlook of the segment of society to which he belongs will find expression in the work of the Court...