William Fassuliotis ‘19
President Eisenhower’s first term proved to be an eventful one. Ike brought an end to the Korean War stalemate and convinced reluctant hawks to support the armistice. He signed into law the act that started the interstate system. He cut taxes and balanced the budget by reducing the size of the military. These and more brought an impressive resume for his campaign for reelection in 1956. But Eisenhower had also suffered a heart attack the year before, and at 64, there were not-so-quiet concerns about his health as he was beginning to finish his second term. In addition, the events that would lead to the Suez Crisis began to simmer.
Perhaps of more interest to the legal profession, Ike had to this point appointed two Justices to the Supreme Court: Chief Justice Earl Warren1 and Justice John Marshall Harlan. The latter Justice was not the first John M. Harlan to sit on the court; his grandfather was nominated by President Rutherford B. Hayes, and served from 1877 to 1911. Harlan II would work on his opinions on the desk Harlan I used and wore his grandfather’s pocket watch. Harlan I is best known as the lone dissenter in Plessy v. Ferguson2––“[o]ur constitution is color-blind, and neither knows nor tolerates classes among citizens”––and Harlan II would join the Court just in time to help carry out the spirit of his grandfather’s dissent into the law of the land in Brown II and other segregation cases.3
As if the above were not enough issues for the campaign, it was a mere two months before election day (early September 1956) when Justice Sherman Minton4 informed President Eisenhower that he would retire soon and that Ike would have a chance at a third nomination before the election. Fearful of losing, Eisenhower and his advisors came to use this vacancy to shore up electoral support. The Supreme Court as a political motivator was not novel back then and is so obvious now so as to hardly merit mention. But Eisenhower was not thinking of nominating an ideological firebrand to ignite the ideologue’s support. No, Eisenhower didn’t nominate Brennan for what he believed, but for who he was: an Irish, Catholic, Democrat from the Northeast. Such voters were key members of the New Deal coalition, but also the voters Eisenhower attracted as the Supreme Commander of the Allied Forces in World War II. But why focus on these demographics? And why Brennan?
In private, Eisenhower laid out three criteria for the next justice: (1) experience on lower courts; (2) relative youth (younger than 62) and good health; and (3) if at all possible, a Catholic faith. The first criterion was in response to Truman’s tendency to pick his friends or, in the eyes of critics, cronies. Eisenhower viewed such appointments as unpleasant and harmful to the Court’s status. Eisenhower was particularly interested in appointing a state court judge. There had been no state judge appointed to the Court since Benjamin Cardozo nearly three decades earlier, and various state court interests lobbied Eisenhower to change this. The second criterion is self-evident.
The third criterion may strike the current observer as odd. The Court today has a Catholic Chief Justice and is majority Catholic (and has been since 2006, when Justice Samuel Alito was confirmed). But at the time, no Catholic sat on the court. The longtime “Catholic seat” sat empty for seven years since the death of Justice Frank Murphy in 1949. Political pressure was borne on Ike as well. The powerful Archbishop of New York, Cardinal Francis Spellman, had personally asked Eisenhower to appoint a Catholic as early as 1954. And while Eisenhower had won Northeast Catholics in the previous election, vigorous campaigning for the Democratic nominee by a young, charismatic Senator named John F. Kennedy made outreach even more important in the minds of Republicans.
The search was headed by Attorney General Herbert Brownell.5 The criteria did not leave many options––only two federal judges fit the bill. At this time, Brennan was a Justice on the New Jersey Supreme Court. Despite Brennan’s being a Democrat, the Republican Governor of New Jersey appointed him to the state trial court, before elevating him to the state Supreme Court. To the extent that Brennan had a reputation, he was known as an able administrator and proponent of court reform. Along with state Chief Justice Arthur T. Vanderbilt, Brennan implemented a system that drastically reduced congestion in the state judiciary. It was for this that Brennan first came to the attention of Brownell and on the path to becoming a Justice.
Earlier, on May 22 in 1956, Brennan delivered a speech on the topic of court efficiency in Washington, D.C. at the Justice Department headquarters. He had delivered similar speeches many times before, but this was easily the highest profile venue to hear it. Despite the admittedly boring nature of the topic, this conference played a pivotal role for Brennan’s selection. After listening to Brennan’s twelve-page speech, Brownell and his Deputy AG were suitably impressed and sensed from the speech a moderate conservatism, making him the best choice when the vacancy opened later that year.
One story that was perpetuated for so long as to become legend was that this speech was not even Brennan’s. The story goes that Brennan was a last-minute substitute for his mentor, New Jersey Chief Justice Vanderbilt. His substitution was so last minute that Brennan read Vanderbilt’s speech, and that the good impression he had on Brownell was actually a false impression, the imprint of someone else. Brennan’s selection would then be quite literally a mistake from its beginning faulty premises. While repeated for much of Brennan’s life, later evidence contradicts the story as little more than myth.6 Mistake or not, Brennan’s selection was not by accident. Brennan was the only name Brownell recommended to Eisenhower.
On October 16, 1956, Eisenhower put Brennan on the Court through a recess appointment.7 A recess appointment commission would expire at the end of the term, so if Eisenhower lost, Brennan could lose his spot on the Court if the Democrat Adlai Stevenson wished to appoint someone else. Eisenhower would win the election, convincingly, however, 457 to 73 electoral votes, and 35.5 million (57.4%) to 26 million (42%) for Stevenson. On March 25, 1957, Brennan would be confirmed by the new Senate by voice vote.8 And Justice Brennan would stay on the court for 33 years, longer than all but six other justices.
This article’s primary source, in addition to above citations, was Seth Stern and Stephen Wermiel’s “Justice Brennan: Liberal Champion.” Next time: the nomination of the first African American Justice: Thurgood Marshall.
1 See last week’s article, Ike’s Mistake: The Accidental Creation of the Warren Court, for more.
2 He also dissented in Lochner v. New York, making him two for two in dissenting from cases that would form the anti-canon.
3 The Senate actually refused to hold a vote on Harlan’s nomination at first. Eisenhower nominated Harlan on November 8, 1954, after the midterm election. Southern segregationists were able to hold off hearings until the new Congress was inaugurated. When Harlan’s nomination expired at the end of the Congress, Eisenhower re-nominated Harlan. The Senate finally confirmed Harlan on March 16, 1955, 77-11.
4 Justice Minton was appointed by President Truman in 1949 at the age of 58 and served only seven years. Minton retired due to a combination of poor health and his frustration at the “activist” turn of the court, which he felt he had little influence over and dissented regularly.
5 In a sign of the times, vetting was handled directly by the Attorney General, the Deputy Attorney General, and two or three others, not the scores of lawyers or outside groups used today. Brownell claimed he read all four hundred of Brennan’s opinions, on top of his other AG duties. The sparse vetting team could help explain how someone who would be as liberal as Brennan could be appointed. Brennan was only the third Justice to have a background check conducted by the FBI. The report was put together in no more than a day.
6 For the evidence against, see Stephen J. Wermiel’s “The Nomination of Justice Brennan: Eisenhower's Mistake? A Look at the Historical Record.”
7 For those with recent nominations in mind, does this directly contradict the so-called McConnell Rule, which purports to prevent new Justices during a presidential election year, invoked to avoid holding hearings for Judge Garland, Obama’s nominee? This example is mixed, and it likely depends on your priors. Ike did get his justice on the Court, and there is no sign that the Democratic majority in the Senate objected at the time. But, the Senate did not vote on it. As a recess appointment, Brennan’s commission would expire if no action was taken. And Eisenhower was running for reelection, not termed-out like Obama was. But do those distinctions actually matter? For a more extensive treatment of the topic, see https://www.washingtonpost.com/news/fact-checker/wp/2016/02/24/a-recent-supreme-court-appointment-in-an-election-year-without-controversy/?utm_term=.c3cf30db3307.
8 In the intervening time, a new vacancy on the court opened up when Justice Stanley Reed retired. Charles Evans Whittaker was confirmed on the same day to fill the spot.