Once upon a time . . .the answer

[Elizabeth Dale]

At 11:04 PM 4/23/01 -0500, you wrote:
>Ray Solomon did a terrific piece in the (1982?) Am. Bar Found. Res.
>Journal on the history of federal judicial appointments to the Circuit
>Courts of Appeals (there aren't enough Sup. Ct. appts to generalize) in
>the first half of the 20th century.  The main theme was almost precisely
>the question asked (though focused on appointments):  which Presidents
>appointed judges to push a political agenda?  He looked at lots of
>letters, hearings, memoirs, etc.
>
>Every President does some politically motivated appointments, but which
>ones chose people to push a political agenda--instead of picking the
>lions of the bar, or heavy contributors, or friends of the Senators, or
>stalwart members of their party?
>
>The Answer (as I recall):
[several paragraphs deleted]

But this evidence of what presidents intend is not the answer to a question
about judicial behavior, which, I thought, was the issue. Most judicial
appointments are at some level political, and many of the judges and
justices were probably picked on the theory they would vote one way more
than another, or support particular ideals and principles. Even if one is
no more than the former president of the ABA, that probably implies you
will favor particular things and have a perspective on issues that reflect
age and class. Likewise, the fact that a person's entire career was spent
in a large corporate firm, or a prosecutor's office, is probably a pretty
good indication of one thing, while the fact another person's career was
spent in the public defender's office, or doing employment discrimination
in a small firm means something else. Those can be pretty good predictors
on a lot of political issues.

But the mere fact that TR, FDR and JFK made political decisions about
appointments and undoubtedly hoped that justices and judges would advance
their politics does not mean that the judges/justices did so -- look at
Felix Frankfurter, after all. In the same vein, the rallying call no more
Souters means something other than let's make sure we don't have any more
guys with a New England accent on the Court, and we all recall the famous
incidents of Earl Warren and Bill Brennan.

Solomon's piece might help us understand when politicians began running
against the Court or courts (though Jefferson did that too, well before the
20th century), it doesn't necessarily clear up when, or whether, judges and
justices began to feel free to claim that they could or should use the
courts to advance the aims of a party, rather than, say, enforce an
abstract rule of law.


Elizabeth Dale
Assistant Professor, US Legal History
Department of History, University of Florida
Gainesville FL 32611

edale at history.ufl.edu
http://plaza.ufl.edu/edale