By Paul M. Sparrow, Director
The current debate about the appointment of a Supreme Court Justice during a presidential campaign is a political distraction because the constitution is clear on this. But the core issue about the importance of the President’s power to select Justices is vitally important. The consequences of the selection can be tectonic, and are rarely predictable.
Aside from George Washington, no President selected more men to sit on the Supreme Court than Franklin Roosevelt. And back then they were all white men. During his twelve years in office he appointed eight Justices. Four of whom qualify as some of the most influential jurists to ever wear the black robes: Hugo Black, Felix Frankfurter, William O. Douglas, and Robert H. Jackson.
In his book “Scorpion: The Battles and Triumphs of FDR’s Great Supreme Court Justices” Noah Feldman describes them this way:
“Four more different men could hardly be imagined. Yet they had certain things in common. Each was a self-made man who came from humble beginnings on the edge of poverty. Each had driving ambition and a will to succeed. Each was, in his own way, a genius. “
Although they were all appointed by FDR, they did not always agree, and in fact their battles became legend. Feldman describes it this way:
“They began as close allies and friends…Within months, their alliance had fragmented. Friends became enemies. In competition and sometimes outright warfare, the men struggled with one another to define the Constitution and, through it, the idea of America.”
Two of them were among the longest serving justices. Hugo Black (#5) and William Douglas (#1) served on the court for 34 and 36 years respectively. Douglas still holds the record for the most opinions written, and for the most wives (four).
He was also essentially the first environmentalist on the court, and was on the board of the Sierra Club. Known as ‘Wild Bill” he was uncompromising and unpredictable. A staunch defender of the Bill of Rights he was anti-government surveillance and anti-Vietnam War. When Gerald Ford was a congressman he tried to have him impeached, and then got to name his replacement in 1975, John Paul Stevens.
Hugo Black was FDR’s first appointment and generated the most controversy. A Senator from Alabama, Black was a populist politician with little judicial experience. FDR had been battling the Supreme Court over his New Deal legislation, and the conservative Southern Justices had thwarted him time and again. But FDR perceived Black as on his team, and as a sitting Senator would be easily confirmed. He announced Black’s nomination on August 12, 1937, and he was confirmed August 17 – just five days later. No background investigation was done by the White House.
After he was approved by the Senate, it was revealed that he had been a member of the Ku Klux Klan. The controversy was intense and emotional. There were calls for him to be impeached. FDR wanted Black to apologize and renounce the Klan, although Black later said that FDR was aware of his Klan association.
Under intense pressure, Black gave a masterful radio speech in which he claimed that his record in the Senate showed he was not a racist. He admitted to having been a member of the Klan, but that he had resigned before coming to Washington. He survived the storm, but the controversy followed him throughout his career.
In one of the great examples of how serving on the Supreme Court can reveal a person’s true character, Black’s body of opinions and voting record reveal him to have been an “unbending advocate of judicially mandated racial equality.” (Feldman, pg 143) Although he supported the Japanese Internment, he left a lasting legacy as a strong supporter of the First Amendment and Civil Rights.
Felix Frankfurter’s nomination was also highly controversial, and generated such opposition that it was the first time a nominee was forced to appear before the Senate Judiciary Committee, a process that is now required.
A strong supporter of judicial restraint, Frankfurter was enormously influential on the court. Although in his early career he was a radical and helped found the ACLU, during his term on the court he became the leader of the conservative faction, and engaged in sharp conflicts with both Black and Douglas. He described their work as “shoddy” and “demagogic.”
Robert Jackson was the Solicitor General and the Attorney General before becoming an Associate Justice on the Supreme Court. He is the only person to have held all three positions. His description of the Supreme Court remains a landmark of legal observation:
“We are not final because we are infallible, but we are infallible only because we are final”
While he was Attorney General, Jackson helped FDR draft the language for the Destroyers for Bases program that allowed the US to provide war material to Great Britain despite a ban on arm sales dictated by the Neutrality Act. From his first year on the court, Jackson and Hugo Black clashed, both personally and professionally. Jackson was one of the few Justices to disagree with the Japanese Internment and his dissent to Black’s opinion was scathing.
But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it.
These four men shaped American society in ways we are still living with today. Although they were all appointed by a liberal, progressive president, they all charted their own paths and helped make legal history. For any president, the appointment of a person to the Supreme Court is an enormous responsibility, and it is almost impossible to predict how that person will respond once they don the black robes and sit in judgement from the highest bench in the land. It’s the President’s job to nominate, the Senate’s job to confirm, and the Justice’s job to rule whether laws are constitutional. Period.