Supreme Choices

Pursuit of Justicesby David Alistair YalofUniversity of Chicago Press. 240p, $27.50

The right to name Supreme Court justices, clearly among the most far-reaching of presidential powers, has received surprisingly little analysis by historians. Though the influence of a John Marshall, a Roger Taney or an Earl Warren on history is vast, the motives and goals of presidents in choosing them and their fellow justices often remain obscure. Occasionally the darkness is shattered by the controversial appointment of a Robert Bork or Clarence Thomas, or, further back in history, a Louis Brandeis.

In Pursuit of Justices David Alistair Yalof has illuminated this tenebrous landscape. Focusing on the justices appointed by presidents from Harry Truman to Ronald Reagan, with a substantial postscript dealing with presidents Bush and Clinton, the author, who teaches political science at the University of Connecticut, thoughtfully describes the individual styles of each of those presidents and the successes and disasters of their selections. These choices, and their sometimes surprising results, have had a vast impact on our history and on individual rights.

Finley Peter Dunne’s Mr. Dooley long ago reminded us that the Supreme Court follows the election returns. How strongly do presidents, too, weigh political concerns in naming members of the court? As Mr. Yalof notes, advancing a president’s political agenda is often not his goal in naming a justice to the court. Herbert Hoover appointed Benjamin Cardozo in response to powerful insistence in the legal profession that he name the nation’s most distinguished state court judge. Gerald Ford chose John Paul Stevens as a moderate, experienced federal appellate judge likely to receive speedy Senate confirmation. Certainly the response, in the past half-century, has varied with the president. Some, like Truman and Clinton, began the search only when a vacancy occurred. Others, like John F. Kennedy and Lyndon Johnson, had specific candidates in mind from the outsetArthur Goldberg, who had enlisted labor support for Kennedy, and Abe Fortas, Johnson’s personal lawyer, political advisor and confidant. Each chief executive since mid-century has exhibited his distinctive style in selecting justices.

Truman rewarded longtime friends, including his Treasury Secretary Fred Vinson (as Chief Justice) and Republican Senator Harold Burton, relying almost totally on his own instincts. He shrugged off Franklin D. Roosevelt’s promise to name Robert Jackson as chief justice, fearing it would divide the court, but Vinson proved an ineffective chief, mainly remembered today as author of the court’s Dennis decision affirming the convictions of several Communist Party leaders for advocacy of the overthrow of the government over free-speech objectionsa decision the court has essentially overruled since.

In contrast to Truman, Dwight Eisenhower delegated selection largely to his attorney general, Herbert Brownell, and insisted on experienced appellate judges with a record of centrist decisions. This principled approach led to the appointment of William J. Brennan, Potter Stewart and John Marshall Harlan. But Eisenhower’s naming Warren as chief justice was very much his own personal decision, fulfilling a promise to the California governor and vice-presidential candidate who helped nominate Eisenhower over Robert A. Taft at the 1952 convention.

Kennedy’s appointments were, in the author’s words, in the nature of patronage. As noted, Goldberg was rewarded for early political support, and Byron White’s Naval service with Kennedy in the Pacific advanced his cause, while highly respected candidates like Paul Freund of Harvard Law School and Circuit Court Judge William Hastie were sidetracked. Johnson’s naming the distinguished Thurgood Marshall contrasts with his maneuvering Goldberg off the court to be replaced by Fortas, followed by his heavy-handed attempt to name Fortas chief justice in the closing months of his presidency.

The Fortas fiasco, ending with his being forced off the court for accepting payments from a financier under investigation, enabled Richard Nixon to appoint Warren Burger chiefa position, the author reveals, to which Burger assiduously aspired. Nixon’s plans to name next a conservative Southern judge foundered on Clement Haynsworth’s ethical conflicts and J. Harrold Carswell’s racial insensitivities, overlooked in the Justice Department’s vetting of these candidates. Finally, at Burger’s urging, Lewis Powell overcame his initial reluctance and accepted.

Reagan’s pioneering selection of Sandra Day O’Connor was applauded. However, his naming of the outspokenly conservative Bork dramatically raised the stakes, leading to a pitched battle in the Senate over the candidate’s ideology. Although Bork’s defeat led to Reagan’s choice of the middle-of-the-road Anthony Kennedy, the heightened Senate, public and media interest in controversial nominees lit the fuse that the Thomas nomination was to touch off.

Yalof’s discerning book suggests that presidents fare better relying on one astute advisor, as Eisenhower did with Brownell, than a multiplicity of cooks, as with Nixon and Clinton, or their own hubris-tinged agenda, as with Johnson’s attempt to promote Fortas. In the end, perhaps one does well when setting out to do good.

Other authors, such as John Maltese in The Selling of Supreme Court Nominees, have focused on the tenuous relationship between president and Senate in this area. Some, like Barbara Perry in A "Representative" Supreme Court, have highlighted religious, racial and gender concerns as elements driving the appointment process. Yalof’s book squarely examines the motives, tactics and occasional gaffes of presidents as they select justices whose rulings’ impacts reverberate for decades. It provides a look at the often intriguing human conflicts born of the selection process as well as a well-reasoned explanation of the varied paths recent presidents have taken. I await Yalof’s sequel analyzing the Bush and Clinton choices with the same intensity. This field needed attention, and the author has tilled it well.