Authors:
Historic Era:
Historic Theme:
Subject:
October 1991 | Volume 42, Issue 6
Authors:
Historic Era:
Historic Theme:
Subject:
October 1991 | Volume 42, Issue 6
When Thurgood Marshall announced his retirement from the United States Supreme Court, politicians and pundits across the country bewailed the President’s succumbing to “politics” when selecting Marshall’s replacement. “Where are the giants?” demanded Newsweek, adding that “politics is packing the court with mediocrity.” In fact, this Court’s intimate relation to “politics” is as old as the Court itself, and it has managed to give us, along with the pygmies, some giants. Starting with George Washington, every President selecting a Supreme Court justice has kept clearly in mind the nominee’s compatibility with his own governmental—that is, “political”- philosophy.
When nominating a new justice, the President always lauds the nominee’s “experience,” “background,” and “demonstrated legal ability.” The encomiums, however, come only after a selection process calculated to ensure that the newcomer’s future opinions will reflect the correct political outlook. Presidents leave after a term or two, representatives and senators fall prey to electoral accidents, but justices sit on the bench for life, preserving those principles for which the President who picked them has always stood—or so, at least, the President hopes.
This urge to select a justice for reasons other than his intrinsic merit strongly affected even the appointment of four of our greatest justices: Joseph Story, Oliver Wendell Holmes, Louis D. Brandeis, and Felix Frankfurter. The history of their elevations illustrates both the persistence of the litmus test for selection and the development of the Senate’s role in the process.
In September 1810 Justice William Gushing died, the last of George Washington’s original Supreme Court appointees. To maintain geographic balance on the seven-man Court, President James Madison, planning to select a New Englander, found himself trammeled by the personal needs of his predecessor and political patron, Thomas Jefferson.
At the time, Jefferson was fighting a lawsuit brought against him in a Virginia federal court. The plaintiff, the Louisiana attorney Edward Livingston, was seeking one hundred thousand dollars in damages for trespass to riverfront land at New Orleans, an incursion Livingston alleged had been ordered by Jefferson and the then Secretary of State, Madison.
Jefferson, as one biographer has observed, “always viewed any legal proceeding against himself with a strange mixture of rage and panic.” He knew the case would come to trial in the federal circuit court for Virginia, whose presiding judges were the ailing Cyrus Griffin and Jefferson’s enemy Chief Justice of the United States John Marshall. Convinced that Marshall’s presence would deprive him of any chance at a fair trial, Jefferson spent almost a year trying to effect the appointment of a more sympathetic circuit court bench.
Marshall, of course, he could not touch. But Griffin seemed about to topple, and Jefferson had recently received a letter from John Tyler, father of the future President, asking for Griffin’s place, so that Tyler could, as he put it, “lay … down softly on