Just in time for the Kagan confirmation hearings, BackStory is delving into the long history of appointments to the Supreme Court. What qualities did presidents and lawmakers look for in Supreme Court justices 200 years ago, and how have those expectations changed? How much have nominees’ personalities and backgrounds mattered in the past? Was the confirmation process always as “politicized” as it seems today? Was it more so? How has media coverage affected the process? Join the History Guys as they explore the highlights – and lowlights – of Supreme Court nominations past.
eMaeva Marcus, Director of the Institute for Constitutional History and editor of The Documentary History of the Supreme Court: 1789-1800
eHenry J. Abraham, James Hart Professor of Government Emeritus at the University of Virginia and author of Justices, Senators, and Presidents: A History of U.S. Supreme Court Appointments from Washington to Clinton
eLinda Przybyszewski, Associate Professor of History at the University of Notre Dame and author of The Republic According to John Marshall Harlan
P. Onuf: This is “BackStory,” with us, the American History Guys. I’m Peter Onuf, 18th century guy.
E. Ayers: I’m Ed Ayers, 19th century guy.
B. Balogh: And I’m Brian Balogh, 20th century history guy. [music]
Tape: “Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.” [gavel]
P. Onuf: For more than two centuries, that’s pretty much how it sounded each time the United States Supreme Court is called into session. Normally, the gavel gets hung up for the summer but this year, the beginning of summer signaled the kick-off of another Supreme Court-related tradition. This one doesn’t come around every year but when it does, it can get a bit ugly. I refer, of course, to the strange spectacle that is the Senate confirmation hearing.
Tape (Robert Bork): “I think Senator I not only wrote that. I still think I was right and I’ll discuss it with you. For one, we might start off by observing that the Senate of the United States would be an unconstitutional body if that rationale of one-man/one-vote were applied here.”
Tape (Sen. Ed Kennedy): “Well, that’s entirely different as you’re too good a—”
E. Ayers: That was erstwhile Supreme Court nominee Robert Bork in 1987 in the confirmation hearing that set the stage for all confirmation hearings to follow. His nomination went down in defeat, making it clear to all future nominees that when answering these senators’ questions, less is more. Deference is the name of the game. Of course, there had been exceptions.
Tape (Clarence Thomas): “This is a circus. It’s a national disgrace. It’s a high-tech lynching for uppity blacks who in any way deign to think for themselves.”
P. Onuf: Remember that one? Justice Clarence Thomas in 1991 responding to allegations about his relationship with Anita Hill. As I said, these hearings can get ugly. Here’s Senator John Cornyn last summer grilling then-nominee Sonia Sotomayor about her infamous speech to law students from years earlier.
Tape (John Cornyn): “You said a wise Latino woman would reach a better conclusion than a male counterpart. What I’m confused about, are you standing by that statement or are you saying that it was a bad idea and you—”
E. Ayers: Now, as predictable as all this partisan grandstanding has become, it can be easy to forget that this whole tradition, as Peter called it, is a relatively recent invention.
Tape (Henry Abraham): We never had a nominee appear before a Senate committee until 1925 when the Court was one hundred and fifty years old or close to it.
B. Balogh: That’s Henry Abraham, a Professor of Government Emeritus at the University of Virginia. Back in 1974, seven years before the hearings started being televised, Abraham published a book that detailed every Supreme Court nomination that there’s even been, successful or otherwise.
Tape (Henry Abraham): We’ve had a 150 specific full-blown nominations. Of those, 30 were rejected or not acted upon. That’s, my math isn’t very good but, that’s considerable.
B. Balogh: Okay. I know what you guys are thinking. You’re probably going to point the finger at my century and blame something like TV for making the nominations so contentious.
E. Ayers: That makes sense to me.
B. Balogh: Yeah. Well, before you do that, Ed, let me just point out that only 5 of those 30 failed nominations took place in my century, the 20th century, meaning that you, Mr. 19th Century Guy, are on the hook for this one.
E. Ayers: Well you know, when you are the center of American history, you’re on the hook for a lot of things, but that is an interesting question I have to admit, Brian, that we would think, judging from today’s headlines, that things are more acrimonious now than they’ve ever been but, in fact, you’re telling me that that’s not the case, so that’s what we’re going to be doing today. We’re going to be looking at the range of acrimoniousness. [laugher] What we’re also going to be doing is trying to figure how the criteria for Supreme Court Justices have changed over the years and on the more cosmic level, is the whole process democratic enough?
B. Balogh: Later on, we’re going to hear from a few other scholars of the Court and take some listener calls but, first, we’re going to return to Henry Abraham. He told me that in the 21st century those senators really have come to dominate the process.
Tape (Henry Abraham): They wanted to see the candidates. Now, they wanted to see Brandeis. That was 1916, first Jew to be nominated.
B. Balogh: Is that why they wanted to see him?
Tape (Henry Abraham): That was part of it, but not only that. There was also he was a very successful lawyer and often was a lawyer for the underprivileged but also often for certain trusts and corporations. They wanted to see him and he said, no. Brandeis told Wilson, “I am honored by your nomination but I cannot— I will not defend or advance myself.” And Wilson accepted that. After Brandeis, they waited until Stone, 1925. That was nine years later. He appeared and he sailed through. Then there was a hiatus. Well, in 1939, Douglas who still holds the longevity championship, 36½ years, Douglas wanted to be interviewed and he parked himself in front of the door. [laughter]
B. Balogh: He asked to be interviewed?
Tape (Henry Abraham): Yes, but they didn’t want to hear him. They didn’t want to see him. It was not until John Marshall Harlan, II, that they formally institutionalized the absolute required presence of nominees in front of the Senate Judiciary Committee.
B. Balogh: That’s Henry Abraham, author of Justices, Presidents, and Senators: A History of U.S. Supreme Court Appointments from Washington to Bush II. You can listen to more excerpts from my conversations with him at backstoryradio.org.
E. Ayers: So, Brian, Henry Abraham says that the confirmation of John Marshall Harlan, II, was really the beginning of the modern confirmation process. Now, that was in the ‘50s?
B. Balogh: Yes, that’s 1955, immediately in the wake of Brown v. Board of Education where the Supreme Court unanimously ruled that Jim Crow segregation in the South was unconstitutional. This rang alarm bells for the Senate Judiciary Committee, especially those southern Democrats on that Committee and it had very little to do with Marshall specifically.
E. Ayers: Right, right.
B. Balogh: They were just making a statement—we are going to vet everybody very carefully and while I don’t think they use the term “litmus test” the way we do today, in fact, they were trying to figure out how is this person going to come down on intervening in things like states’ rights.
E. Ayers: That’s very interesting, Brian. We see that people don’t really care if John Marshall Harlan, II, had this kind of personality or that. I wondered, did people care back at the very beginning, Peter, who these people really were. Did their personalities matter?
P. Onuf: Well, not personalities, Ed, but who was appointed to the Court was incredibly important. You know, at the beginning, the real question was would the Union survive and the big struggle over the ratification of the Constitution hinged on whether or not the new regime could establish its own independent court system and what kind of conflict would there be with state courts and would the federal government be able to hold its own on the ground of the respective states. That was the big issue, so you needed justices who had political standing in their states. They didn’t have to be great lawyers. They didn’t have to pass muster with a bar association that didn’t exist yet. What they did have to do was have that profile of being a locally recognized statesman, somebody who had a reputation.
B. Balogh: So, you’re saying the Court had so little authority that it needed to be filled out with men who brought authority to the Court.
P. Onuf: Yeah, absolutely. And one of the reasons why is what we call circuit riding. Circuit riding was the product of the Judiciary Act of 1789 which established the Supreme Court and set the number of justices at six. That Act also established three circuit courts and set the number of judges for them at exactly zero. [laughter] The idea was that circuit courts would be manned by two Supreme Court justices.
B. Balogh: Kind of double-dipping.
P. Onuf: Yeah, right. And a district court judge. These districts were enormous. There were three of them in the entire country at first; there were more later on, but that meant that justices were on the road all the time, really logging the miles and killing the horses and most of them, understandably, hated circuit court riding which is entirely understandable as Supreme Court historian Maeva Marcus explained to me. She told me that when justices were on the road, they weren’t even allowed to stay with their friends. They were required to stay in public accommodations.
Tape (Maeva Marcus): Now, when we say public accommodations—
P. Onuf: Yes, this is not 4-star hotels.
Tape (Marva Marcus): No, it was not a 4-star hotel. They were mostly horrible. They slept in beds with multiple people. One other thing the Judiciary Act had that the Justices had to decide their cases according to the law of the states. It means you have to know the law of 13 states and it was very very difficult. It was a lot of work.
P. Onuf: So, they worked really hard. They stayed in miserable accommodations.
Tape (Marva Marcus): They did.
P. Onuf: Why would anybody want to be on the Supreme Court?
Tape (Marva Marcus): That is a very good question and the reason people wanted to be on the Supreme Court was because next to the President and the Vice President, the Justices were the highest paid federal employees.
P. Onuf: It was money? [laughter]
Tape (Marva Marcus): Money and also prestige. There’s no question, but also the Justices had to pay all of their expenses from their salaries. There was no expense account.
P. Onuf: So, they lived as cheaply as they could.
Tape (Marva Marcus): Well, they ended up, frankly, with almost no money when they were finished with these circuits.
P. Onuf: So, what you’re saying is that the first Justices of the Court had poor judgment. [laughs]
Tape (Marva Marcus): Well, they didn’t know. No one knew.
P. Onuf: Right.
Tape (Marva Marcus): There had never been a continental court in the United States. This was a novel institution, but it also was the only institution where normal people, regular folk, could actually have contact with a federal official. You would occasionally see your congressman. There was not, as you know, the kind of campaigns we have now, but the courts came to the states. The towns vied with each other to be the site of the meeting of the Court and the Justices were used to talk about the new government.
P. Onuf: Maeva Marcus is the Director of the Institute for Constitutional History. She edited the 8-volume Documentary History of the United States Supreme Court, 1789-1800. We’ll post the full version of my interview with her on our website, backstoryradio.org.
B. Balogh: You know, Peter, I think you have a news flash there for the “Style” section of the Post and the headline is something—politicians have been sleeping with multiple people for centuries. So with all this circuit riding, all this jockeying around, [laughter] how did that come to an end. Was it the arrival of the carriage trade? Better roads? Or did something else change this?
P. Onuf: Well, actually, they weren’t riding horses anymore, Ed, because, believe it or not, it was in Brian’s century that the practice finally ended. That’s in 1911.
E. Ayers: So, let me get this right. Just at the very moment when they could’ve driven, they stopped doing it.
P. Onuf: Yeah. [laughter] And I want to assure you that these guys had rooms of their own by 1911. [music]
E. Ayers: And who says there’s such a thing as progress?
B. Balogh: It’s time for a quick break. When we get back, we’ll field a few questions from listeners on the phone.
P. Onuf: More “BackStory” coming up in a minute. [music]
P. Onuf: This is “BackStory.” I’m Peter Onuf, historian of the 18th century.
E. Ayers: I’m Ed Ayers, historian of the 19th century.
B. Balogh: And I’m Brian Balogh, historian of the 20th century. We’re talking today about how the Supreme Court nomination process has changed over the course of all three of our centuries. For the past few weeks, we’ve been soliciting your comments on Facebook and backstoryradio.org, and our producers have invited a few of the people who weighed in there to join us on the phone.
P. Onuf: First up today, we have Nicole calling in from Shreveport, Louisiana. Nicole, welcome to “BackStory.”
Caller (Nicole): Thank you.
P. Onuf: What’s on your mind today?
Caller (Nicole): Well, I’m wondering, in light of President Obama’s successful nomination of Justice Sotomayor to be the first Hispanic justice, I’m wondering how much attention has been paid over the years toward using the nomination process to do something historic as opposed to just focusing on the balance of the Court.
P. Onuf: Great question. What would you say about that, Brian?
B. Balogh: Well, before I take over, I am curious to know. Nicole, I’m the 20th century guy and, yes, certainly starting in the 1960s with the appointment of Thurgood Marshall, the first African American on the Court, we have measured the historicity—that’s not really a word—
P. Onuf: No, it is.
B. Balogh: Is it?
Ed Ayers: But it sounds almost like one.
B. Balogh: [laughs] Almost like one. We’ve measured historic moments in terms of race and ethnicity, but I am curious, what made for historic appointment in the 18th century? Well, the first Supreme Court, that must’ve been historic, Peter.
P. Onuf: Yeah, just to get one. The big thing in the early period, Brian, is sectional balance, to achieve sectional balance and I think it says a lot about the nature of the United States that in the early years, the great concern was binding the Union together and when the Constitution was ratified, there was a big concern that if it weren’t ratified, that the Union would split up into two or three parts, so there was a even a proposal for a plural executive with each section of the country represented by a president, if you can imagine that. So, I’d say that the short answer on the historic changes is that we’ve moved from a genuinely federal system when we worried about sectional balance representing different parts of the country to a much more demographic racial representativeness which is now the model.
E. Ayers: But, wait, you left out my century.
B. Balogh: It actually did split up during your century, Ed.
P. Onuf: Did something happen in the 19th century, Ed?
E. Ayers: Well, you know, every once in a while, but the thing here is that the sectional balance remained of central importance, which I’m guessing remained the case for the first half of the 20th century, too, Brian, right?
B. Balogh: I think that’s right.
P. Onuf: Yeah.
E. Ayers: Yeah? But then overlaid over that was partisan and so before we had ethnicity and race and gender, we had Democrats and Republicans and Whigs.
B. Balogh: Well, I want to pick up on something that both of you said actually, so Nicole Peters said that in the early days of the Union, that Union couldn’t be taken for granted, so we really had a focus on appointments that would help bind the Union together and Ed talked about the political parties and I think today because we do take the Union for granted, we don’t have to worry about holding together the nation and because the parties don’t do the kinds of the jobs of bringing together these odd coalitions—
P. Onuf: Yeah, good point.
B. Balogh: Of southern Democrats and northern Irish people, presidents kind of need to do that on a retail basis. They need to pick out candidates who symbolically will help represent groups that they feel perhaps are under-represented and that’s one of the things that leads to the kind of ethnic and religious nominations that you’re talking about today. But the point I want to make is that we can do that because we assume that the nation’s going to be held together.
P. Onuf: So, the real question is what’s being represented on the Court throughout American history and it’s a fascinating barometer of how we think of ourselves as a people.
E. Ayers: Well, you know, Nicole began with a question about historic appointments. It strikes me that we may be at the beginning of a historic moment to put historians on the Supreme Court.
P. Onuf: You know, Ed, I was thinking I didn’t want to be the first to say it. [laughter]
Caller (Nicole): That’s great.
E. Ayers: If you just put three of us on at one time—
P. Onuf: And get rid of everybody else—
E. Ayers: We could address most of the problems—
B. Balogh: You want to know original intent. We’ll tell you what original intent was.
P. Onuf: We have the lower courts making phone calls to “BackStory.”
Caller (Nicole): There you go.
P. Onuf: Okay. [laughter] Thanks for calling.
Caller (Nicole): Thank you so much. Bye bye.
P. Onuf: We have another phone call and it’s from Catherine in Baltimore, Maryland. Catherine, welcome to “BackStory.”
Caller (Catherine): Thanks so much.
P. Onuf: What’s on your mind today?
Caller (Catherine): So, I’d heard a piece on “Morning Edition” discussing the importance of the religious background of the next Supreme Court nominee and I was wondering how much that actually matters.
E. Ayers: Catherine, are you asking how much does it matter politically in the nomination process itself or how much does it matter substantively once these folks are on the Court?
Caller (Catherine): I think substantively once they are on the Court is the more important question, but the question that’s going to drive everything is how much it matters politically, right?
P. Onuf: Right.
B. Balogh: Yeah. Well, I certainly think that it matters tremendously or it has mattered when it’s a first, right? So, you know, when we’re talking about Justice Brandeis, for instance, and he’s Jewish, this is something that is a—
P. Onuf: It’s a big deal.
B. Balogh: It is a big deal. It’s very contested. I’m not sure who the first Catholic on the Court is. Do you know, Catherine?
Caller (Catherine): I don’t.
B. Balogh: We get most of our information from our callers.
Caller (Catherine): [laughter]
P. Onuf: Wasn’t it Roger Taney? I mean, I believe he was a Catholic.
E. Ayers: That’s right, Peter. Roger Taney was in fact the first Catholic Supreme Court Justice, 1836, and what’s interesting about that is that it really wasn’t controversial so much because of his religious background but rather because that he was seen as sort of a political crony of Andrew Jackson. He’d been rejected for a Cabinet position before. Jackson was kind of sneaking him in at the end and people talked about how stooped and sallow he was and so ironically, even though it was the first and even though anti-Catholicism would soon rage throughout the country, in 1836, it wasn’t quite the matter it would be later because immigration from Ireland, in particular, had not really peaked at that point, so it’s kind of under the radar, if they’d had radar in the 19th century.
B. Balogh: That’s so interesting, Ed, because today we think, well, you know, if you get enough Hispanics in the country, then you need a Hispanic justice to represent them, but you’re saying that being Catholic wasn’t that big a deal for Taney because there weren’t all that many Catholics.
P. Onuf: And they were Americanized, too. They were very conscious about the environment they were living in and working in and they had to overcome a knee-jerk prejudice from the Protestant majority that they were taking their cues from the Pope and that is a fundamentally anti-Republican, anti-Democratic idea that this foreign potentate was calling the shots in America. That’s when religion really had a political aspect. I don’t think people worry about the Pope much anymore, but that used to be a major thing.
B. Balogh: Yeah, although Peter, I will say given the huge significance of Roe v. Wade and given the church’s position on abortion, each appointment who is Catholic is certainly viewed with more scrutiny on the question of abortion.
P. Onuf: No, I agree with that, but I would say, Brian, that the real question of faith, to put it in these terms, is does the nominee really believe in the Constitution. In a way, you have to get your cues from the constitutional text and it’s not going to be that you read the Constitution in the light of your personal values.
B. Balogh: Yeah.
Caller (Catherine): Fascinating.
B. Balogh: Thank you very much for calling, Catherine.
Caller (Catherine): Thank you so much.
Ed Ayers: Bye bye.
Caller (Catherine): Bye.
P. Onuf: The question of the religion of the nominee really raises the larger question of character and character has become the currency of the realm in American politics. Generally, in some ways nominees to the Court are interchangeable with political candidates and we want to know who they really are and in a way, there’s a big tension, I think between the mystery that’s supposed to surround the Court, the majesty of the law. We look up to the law. This is the truth, at least within our system, and the idea of knowing what makes the justices tick.
E. Ayers: You know, all this discussion reminds me that what counts as character has changed over time. It’s not merely your religious faith. Sometimes, it was really how good a party man you were. I mean, if you were too independent-minded, you must not really be all that reliable and that brings to mind the case of one particularly interesting justice from the end of my century, John Marshall Harlan, appointed to the Court in 1877 by Republican President Rutherford B. Hayes, is best remembered for his lone dissent in Plessey v. Ferguson, the 1896 case that upheld southern segregation laws and in that dissent, Harlan declares that “the Constitution is color blind.”
Now, that’s surprising considering that Harlan grew up in a Kentucky slaveholding family, ran for office in the 1850s on a pro-slavery platform and was not known as a particular advocate of black rights. It was this fundamental contradiction that inspired historian Linda Przybyszewski to write a book about Harlan. It turns out, his life was full of contradictions. Listen to what she told me, for instance, about his party affiliations. Harlan begins his career as a Whig, a sort of strongly Unionist character, but that presents problems for him.
Tape (Linda Przybyszewski): The Whig Party falls apart in the 1850s. For a little while, he was a Know Nothing. For a little while, he was part of a very short-lived party called the Opposition Party and then by 1860, the election where Lincoln is going to become president, he was a member of the Constitutional Union Party which was for the Constitution as it was, with slavery but for preserving the Union at the same time.
E. Ayers: So then he ends up fighting for the Union, right?
Tape (Linda Przybyszewski): Right, because the Union as it was, as it is, the Union with slavery, but what happened in early 1863 is he resigns his commission and some people have argued that he resigned because he was, in effect, protesting the Emancipation Proclamation which had gone into effect at the beginning of 1863 and it’s true, he was opposed to the Emancipation Proclamation but the real reason was his father had died, his father ran the law office which was the family firm, and he needed to get back home and to start making some money in order to support his family. He immediately got back into Kentucky politics. He was elected the State Attorney General in 1863 and then he supported the Democratic candidate, George McClellan, in 1864.
E. Ayers: Okay. Let me get this straight. So, in the short period of time, we’ve heard him be a Whig, an Opposition, a Constitutional Unionist, a Democrat—
Tape (Linda Przybyszewski): I know. And then, in 1868, he becomes a Republican. [laughter]
E. Ayers: Well, he’s a man of principle, I can tell.
Tape (Linda Przybyszewski): There were people at the time when he was nominated in 1877 who said, look at this guy’s record, he’s all over the place, is really a Republican? But in the late 1860s in Kentucky in particular, it was a very trying decision because it was either the Democrats which historically, right?, are the enemies of the Whig Party, his father’s party, or it’s the Republicans who embraced what was a revolutionary change in the Constitution and Harlan had to decide between them and I think he decided for the Republicans because he was so appalled at the violence that Kentucky saw in the mid 1860s and late 1860s when former Confederates came back and a lot of Confederate sympathizers were still in Kentucky and they organized gangs who went around burning down schoolhouses for black children, terrorizing black men and women and beating people up and attacking the Union supporters as well and I think you had to make the choice between a party that he thought represented violence and chaos and a party which represented order, in his mind, the Republicans, even if it was a new order and I think he told himself that whatever his father had been as a slaveholder, he had never been—this is what he tells himself, I don’t know that this is true—but he’d never been a violent man. He’d never been a man who abused the power that slavery had handed to him.
E. Ayers: So, we’re going to pause the tape here for a minute. So in the very time that Harlan has decided to become a Republican and join the Supreme Court, help bring stability, the Democrats across the South are putting in place segregation on railroad cars and in all kinds of matters of public accommodation, but it turns out that there’s a lot of African Americans who resist this and they say “if I’m paying a first-class ticket, I deserve a first-class accommodation.” And the railroads don’t like all this because they’re constantly facing lawsuits and conductors are having to decide one time after another—do I throw somebody off the train, who’s black, who’s white, and so the Supreme Court is faced with a challenge of this in 1896 and Plessey v. Ferguson is the case that creates the legal doctrine of separate but equal, a doctrine that’s going to stay in place for the next six decades until it’s overturned by Brown v. Board of Education. But there’d been another Supreme Court case more than a decade earlier in the early 1880s that also upheld the constitutionality of these segregation laws and Harlan then also issued the only dissent. These were known as the civil rights cases. Here’s Linda Przybyszewski again.
Tape (Linda Przybyszewski): You, see, the civil rights cases are the big case in the 1883. That’s the case everyone around the country heard about. By Plessey in 1896, all the white people have figured, this is all decided. We decided this in 1883. We don’t have to talk about this anymore, so it’s only the black press that really notices Plessey v. Ferguson, so Harlan was remembered until 1954, with Brown v. Board of Education, for— He was remembered for his economic cases. The income tax dissents, his dissents in support of the Sherman Anti-Trust Act and then it’s only once the legal community starts to take civil rights seriously again in the 1950s that Harlan gets people’s attention as a civil rights defender and that becomes the thing he’s remembered for to this day.
E. Ayers: That’s fascinating and you’ve laid out this so wonderfully. I hate to reduce it to current events, but I can’t help but wonder what lessons we might draw from Justice Harlan’s life and reputation as we think about appointing a new Supreme Court Justice.
Tape (Linda Przybyszewski): Well, when it comes to his reputation, I think we need to realize that at any given point in time, we are worried about the particular issue in front of us and we can’t necessarily foretell what in 10 years, 15 years, 20 years, and, of course, these judges have life tenure so they could be on there that long, we can’t actually foretell what will be the big decisions that will be made in the future.
E. Ayers: So does that mean we should just chill and not worry too much about who these people are, that it all is unpredictable and it’ll work out one way or another?
LP: Well, I mean, it is to some degree unpredictable, but I can hardly blame people for asking the questions they ask trying to look at someone’s writings and to ask who they are, who are they, really. What’s going on here? Someone even wrote an article about Justice Antonin Scalia saying that if you looked at his Jesuit boyhood, his education in Jesuit schools, you could somehow find the key to all of his decisions, but I think that’s a little oversimplified.
E. Ayers: Really, one of the very interesting things in your book, Linda, you talk in the beginning about our mania for greatness and determining who is a great Supreme Court justice and the story you just told about Scalia and people thinking if we just look back and find the key in their education or some event in their childhood, do you think we make a sort of fetish out of the personality and backgrounds of these justices rather than thinking about the work that they do?
Tape (Linda Przybyszewski): Well, I think we need to think about both their lives and their work. Oliver Wendell Holmes once said that the life of the law has been experience, not logic, and he wanted to change that. He wanted to turn it into logic, but I actually think the way you learn from Harlan is that experience creates logic, that he learned a constitutional nationalism from his father, the Whig Party member, and then he experienced a Civil War where he had to figure out what does this Constitution look like now and what does this Union look like and what can I do with it and still remain an honorable man and then he went on to act as a judge who was committed to defending that Constitution and defending that Union in its new form, so that I don’t think you can break apart experience and logic. I think that people end up making their logic out of what they have experienced because they’re trying to make sense out of their lives.
E. Ayers: Linda Przybyszewski, Associate Professor of History at the University of Notre Dame, she’s author of The Republic According to John Marshall Harlan, published in 1999 and still with messages for us today. [music]
B. Balogh: Well, my experience and logic tell me that it’s time for another break. While we’re gone, jot down this web address, backstoryradio.org. That’s where you’ll find an extended version of Ed’s interview with Linda Przybyszewski as well as further reading on today’s topic and comments from other “BackStory” listeners.
P. Onuf: When we get back, more on the history of Supreme Court nominations. Don’t go away.
P. Onuf: We’re back with “BackStory.” I’m Peter Onuf, your guide to the 18th century.
E. Ayers: And I’m Ed Ayers, your guide to the 19th century.
B. Balogh: And I’m Brian Balogh, guiding you through the long and winding 20th century. Today’s topic, “The History of Supreme Court Nominations.” So far, we’ve focused on the process itself and how that’s changed, but we should probably take a moment to address a basic question and that question is this: the Constitution doesn’t say anything about how many justices there should be on the Court, so, guys, how did we end up with the number nine?
P. Onuf: Well, guess what, Brian, it’s the decision of Congress in a series of acts—The Judiciary Act of 1789 and subsequent legislation which moves us from six to seven and then up to nine and ten and back to nine. [laughter] All those dizzy changes in your century, Ed.
E. Ayers: Well, they are, and it’s okay that you went ahead and described it in my century, Peter, but what’s amazing is clear how it little sense of the sanctity of that number that there was and one of them, they had right after the Civil War. Well, we said it was ten, but, you know, when three guys retire, maybe it’ll seven. Well, nope. We changed our mind. That’s okay. Maybe nine, so it kind of crystallized in the 1860s and ’70s around nine.
B. Balogh: So, were people upset about that, you know, when the numbers changed?
E. Ayers: No. You’ve got to think—what this is tied to is the geographic growth of the country. We will remember Peter telling us about how circuit riding and all this and so the courts are tied to actually covering parts of the country and it’s not surprising that as you have more and more country, you need more and more courts.
B. Balogh: And it does. That’s a great reminder, though, of how important those sections and those states were, that this was a Union, this was not a powerful national government.
E. Ayers: Well, I should just remind you much more interesting the 19th century was than today [laughter] because now, you know, the playing field is defined, but that was like a game when they kept drawing the boundaries over and over again.
B. Balogh: Yeah. It’s just remarkable to me when you think about the uproar that Roosevelt’s court packing caused in 1937. Now, what was that court packing? Well, Roosevelt was very frustrated that the Supreme Court had become so comfortable and so respected that it was overturning some of the key New Deal legislation, over-reaching, what we could call “judicial activism” today. And so he had a pretty simple plan and listening to you guys, it was basically historically accurate. There’s no fixed number in the Constitution, the number of justices, so he reached back to a 19th century maneuver to say, well, you know, for every justice over the age of 70, and there were six of them at the time, we can increase the size of the Supreme Court if they don’t retire.
E. Ayers: It’s interesting, because it wasn’t about sectional growth. It was really about the growth of the workload. [laughter]
P. Onuf: Exactly.
E. Ayers: “And so these older guys are going to need some help…”
B. Balogh: Or so he said.
B. Balogh: So he said. At any rate, the country, even Democrats, drew the line at that. Even moderate Democrats looked around and said, well, wait a second, if we break down this line of division between the Executive and Supreme Court, if we can just have a president appoint as many people as possible, is he going to be the next Hitler, is he going to be the next Mussolini and that fear of totalitarian government.
E. Ayers: Which people were playing on anyway.
P. Onuf: That’s genuine.
E. Ayers: To attack FDR. Absolutely. So, in some ways, it was trumped up, but in many ways, in my opinion, it was a legitimate concern. Tampering with the very Constitution that Americans, by this time, thought is the thing that distinguishes us.
P. Onuf: Right.
E. Ayers: That’s interesting, but he wasn’t really trampling with the Constitution.
B. Balogh: Not at all.
E. Ayers: He was just trampling with conventional—
B. Balogh: With tradition.
P. Onuf: Right.
E. Ayers: And, apparently, I learned from you guys a pretty short-lived tradition.
P. Onuf: Yeah, but I think it should be said that the way American lawyers and courts respect the Constitution is a way of saying this is still the same country. We have the same fundamental law and that same spirit or principle applies in what we might call settled issues, so that’s a kind of originalism that is if something has been this way, time out of mind, which in this case would be 70 years or so. [laughter]
E. Ayers: That’s a long time in American history.
P. Onuf: That’s as if it were in the original Constitution.
E. Ayers: So, it’s interesting. It’s almost like in the common law tradition what is must be wise.
P. Onuf: Right.
E. Ayers: And if Roosevelt’s going to start fooling with that, what’s his motivation?
Tape (Franklin D. Roosevelt): “By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope, first, to make the administration of all federal justice from the bottom to the top, speedier and therefore less costly. Secondly, to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work. This plan will save our National Constitution from hardening of the judicial arteries.”
P. Onuf: We have another caller on the line. It’s Pam in McHenry, Illinois. Pam, welcome to “BackStory.”
Tape (Pam): Thank you very much.
P. Onuf: And we’re talking about the courts today and you have a question.
Tape (Pam): Yes. Locally, our local judges, can be elected and I was wondering why the Supreme Court has to be chosen by the president and voted on, of course, by the Congress, why was there such a crossing between the Executive Branch and the Judicial Branch?
P. Onuf: Right.
Tape (Pam): Doesn’t that cause conflict of interest or undue influence?
P. Onuf: Yeah. Well, you’re talking about separation of powers, one of our cherished constitutional principles—
Tape (Pam): Yes.
P. Onuf: Brian and Ed are going to talk about the real problems that have emerged, but I’ll talk a little bit about the backstory and that is simply that the Judiciary historically grew out of the Executive. It’s an aspect of the Executive. The courts in Colonial America were the King’s Courts and writs ran in the name of the king. So the idea of the separation of the Judiciary from the Executive, that’s a work in the progress and the U.S. Constitution begins the work but it’s not complete, you might say, so the idea that the judiciary’s elected, for instance, where you live, well, that emerged later in American history, that is, the notion that democracy demands that the elective principle apply to all branches to give them that kind of independence—
B. Balogh: Oh, come on, Peter. Just say what you really think. Your people didn’t want democracy. They wanted a republic.
P. Onuf: Well, I don’t know. Pam, are you ready for this? [laughter] That the Founders—
B. Balogh: Hold onto your populist britches, Pam.
P. Onuf: No. The Founders had a deep distrust for democracy. In a way, it was a dirty word.
Tape (Pam): Well, of course, they did.
P. Onuf: Yeah.
Tape (Pam): They were a bunch of rich guys. [laughter]
P. Onuf: Okay. All right. Now, we got it going. Let me put it this way. I’m not going to make a judgment on this, but the demos or the people or the plebeians, the lower sort, were understood not to be the whole people, that is, all of us and we’re all created equal, of course. They were thought to be a particular order or class that had its own interests and because they were ignorant and poor, they would use their power to take property away from everybody else. That was the general idea or feeling, so there was a pejorative connotation to democracy that has been washed away in the years because, of course, we celebrate ourselves as being a great democracy and that’s a wonderful irony because the Supreme Court is right at the center of our self-conception of living under the rule of law in a great democracy but the Supreme Court is, of course, fundamentally anti-democratic.
B. Balogh: Yeah. Fortunately, we have the 19th century, Pam, and that was a century that loved democracy, right, Ed?
E. Ayers: You know, we really did, Brian, and as a matter of fact, it was up to us, really, to kind of put a lot of flesh on the bones of these institutions of democracy and the person who really took advantage of this was Andrew Jackson who comes into power feeling that he has a great mandate from the American people and he comes up with this idea that we may remember from our textbooks about the spoils system, to the victors going the spoils. And he goes, boy, some of the better spoils are these Supreme Court positions that we can put on there, right? [laughter] So, he puts six men on the Supreme Court and he makes no bones about who they are. They’re people who supported him.
B. Balogh: Yeah, they’re buddies.
E. Ayers: Yeah, they are, and he thinks, great, this will help smooth relationships between the branches and the person who ends up playing the largest role in American history that Andrew Jackson nominates is Roger B. Taney and it looks like Taney just in case you’re listening out there and the high school kids and want to impress your friends by pointing out that, no, it’s actually pronounced Taney for some reason I don’t understand.
B. Balogh: There’s a free party trick from “BackStory.”
E. Ayers: Exactly, you know, so that kind of establishes the pattern of the Supreme Court becoming an ally in partisanship and even the much-beloved Abraham Lincoln, sees nothing wrong with making the head of his campaign David B. Davis, the nominee for the Supreme Court, so across the 19th century, it’s well established precedent to use the Supreme Court as a place to put your best friends. You assume that they are men of intelligence and accomplishment, but they’re also men of helpfulness.
B. Balogh: And the rationale is we do this because the president represents the people.
P. Onuf: Right.
B. Balogh: Who’s democratically elected and those people want to be represented in that second branch of government.
E. Ayers: Exactly. How else would we know who was worthy of the public trust without the process of democracy, so that’s the rationale. There’s no great deep ambivalence or embarrassment about this. It’s just the way that things—
B. Balogh: The way things work. Yeah, and the one thing I’d say, Pam, is during Ed’s period, during the 19th century, democracy was reflected through the political parties and partisanship and by the time, by the end of Ed’s century and the beginning of the 20th century, the progressives came along and said, you know, these parties are actually distorting the will of the people—why shouldn’t we let people vote directly for what they really want so we can break this stranglehold of these parties, so they came up with the initiative, they came up with the referendum and when Teddy Roosevelt ran on the Bull Moose Party in 1912—this was after he had been president, he wanted to be president again, he lost—but one of his Party platforms was electing judges so that they could take that middle person out of the formula, take those political parties out and go right to the people.
Tape (Pam): Well, another reason I like Teddy. [laughter]
B. Balogh: Yeah, he’s definitely your kind of guy and that’s where you got— It’s the progressive era where you got a lot of those elected judges and you got something else. You’ve got the recall where you could actually get rid of judges if people didn’t like them. We’re very fortunate here on BackStory that we don’t have a recall.
P. Onuf: We’re not elected, are we?
B. Balogh: No, we’re not.
P. Onuf: But, you know, Pam, one of the things is and I think this is what Ed was talking about, is as the presidency has been more and more conceived of in democratic terms that the president has a mandate, then the appointment powers of the president do supposedly, in theory, reflect the will of the people.
Tape (Pam): That’s in theory but not reality.
P. Onuf: Yeah.
E. Ayers: Well, Pam, isn’t it possible that there’ve been some good appointed judges? You really think that electing judges would work out well? Have you followed some of the California referenda lately?
P. Onuf: Have you checked out on Congress? How do we feel about the elective principle there?
Tape (Pam): My problem with it is that they’re more concerned with conservative or liberal instead of those that follow the letter of the law.
P. Onuf: Well, Pam, you have opened up the proverbial hornet’s nest and Pandora’s box all in one and that is what is the letter of the law. Do you mean a higher law, a law that maybe has some elements of law of nature, natural law? Do we mean it’s something that people shouldn’t mess with? Or is law what our lawmakers do when they make law, so I think that it’s that fundamental ambiguity about the nature of law that gives the Supreme Court its room to play in and to assert a major role for itself, but I would like to conclude with a point and that is, when we are skeptical about the motivations of our politicians in our democracy, then we don’t trust anybody, so it’s not so much that the Supreme Court is not responsive to us. In a way, too many of the people who serve in government are responsive to us and sometimes when we look into the mirror and we don’t like what we see, but the government are us, as they say in the toy world. [laughter] So, anyway, on that really inspirational note, thanks so much for calling.
Tape (Pam): [laughter] Okay.
B. Balogh: Thank you very much.
Tape (Pam): All right. Bye bye.
B. Balogh: So, guys, could we agree that the Court has become increasingly open to democratic influence since Peter’s period?
E. Ayers: I guess what I would say, Brian, is that it’s been open in different ways to democratic influence. In the 19th century, it is open to the hurly-burly of American politics—
B. Balogh: And party politics.
E. Ayers: Exactly. You know, today, it’s open in the sense that everybody’s watching, right? But, in some ways, it’s been narrowed to talk about issues of ideological consistency and of a certain kind of character. Somebody better’d have never really messed up in their lives before, right? But it’s not really democratic in the sense that if we assume that the party that won in the last election, that elected the president—
B. Balogh: It’s not Cabinet government.
E. Ayers: Yeah, exactly. So I’d say that it’s what we consider democracy or openness has shifted.
B. Balogh: Well, you know what, to really come back to today’s topic, what has become democratic or at least allowed for democratic input, is the nominating process. This is where everyone gets their say but what that has to do with the nature of the Court itself once those people are approved is completely unclear to me. It’s almost as though we have a kind of therapeutic democratic bloodletting so that we can pretend this is a democratic institution and then the Court goes on with its business.
P. Onuf: Yeah. I think the real challenge here is to understand that democracy means much more than elections. There’re many ways in which we participate in this government and we recognize, Americans recognize, that majorities can endanger their interest. Consider the number of people who are in the minority at any given moment who might find the choice of the majority at that moment to endanger their liberties and rights.
E. Ayers: Yeah. We’ve created a great country where everybody feels in the minority all the time.
P. Onuf: Isn’t that amazing? The one question they don’t ask in polls is what do you think about the wisdom of the people and do you trust the people? It’s something that you can’t say. This is taboo, but if you honestly answered this question, most people much of the time, particularly when pet issues come up and fundamental values come up, people say no, actually I don’t.
B. Balogh: If you’re right, Peter, then don’t we in fact need a more insulated branch of government or, Ed, don’t we have to have a Supreme Court that is willing to step in when perhaps the people act in ways that are not terribly wise?
E. Ayers: Yeah, I think, you know, despite the grumbling about the Ivy League bias of all this. You don’t really see people who say, you know, let’s just choose more stupid people on the Supreme Court but what people are saying is we want people who remember what real democracy looks like, what it’s like to be somebody who didn’t have a chance to go to the Ivy League, somebody who is really committed to listening to all the American people, so to answer your opening question, Brian, yes, we’re more open and democratic than we used to be, but with every generation, what that means is changing and we’re no exception.
B. Balogh: That’s all the time we have for our show today, but as always, the conversation continues online. Drop in at backstoryradio.org and tell us whether “The History of Supreme Court Nominations” makes you feel better or worse about the way things work today.
P. Onuf: You can find us on Facebook and at backstoryradio.org. All of our past episodes are there as is a link to our free Podcast. Don’t be a stranger.
E. Ayers: Today’s episode of “BackStory” was produced by Tony Field with help from Catherine Moore and Eric Verkerke. Jamal Milner mastered the show and Gaby Alter wrote our theme. Special thanks today to the website oyez.org for use of their archival audio. Backstory’s executive producer is Andrew Wyndham.
B. Balogh: Major production support for “BackStory” is provided by The Joseph and Robert Cornell Memorial Foundation and by the Colonial Williamsburg Foundation, committed to the idea that the future may learn from the past.
P. Onuf: Support also comes from the David A. Harrison Fund for the President’s Initiatives at the University of Virginia, UVA’s Miller Center of Public Affairs, The National Endowment for Humanities, Cary Brown-Epstein and the W. L. Lyons Brown, Jr. Charitable Foundation, James Madison’s Montpelier, Marcus and Carole Weinstein, Trish and David Crowe, Jay M. Weinberg, Austin Ligon, and an anonymous donor.
Voiceover: Peter Onuf is the Thomas Jefferson Memorial Foundation Professor of History at the University of Virginia. Brian Balogh is a Professor of History at the University of Virginia and UVA’s Miller Center of Public Affairs. Ed Ayers is President and Professor of History at the University of Richmond. “BackStory” was created by Andrew Wyndham for VFH Radio at the Virginia Foundation for the Humanities. [music]