Choosing a Justice

Lyndon Johnson is now mulling over his choice of a successor to Justice Tom C. Clark, who will soon retire from the Supreme Court. For Johnson, the task not only gives him a chance to consider the qualifications of various men; it also forces him to consider what the fate of his Administration could be at the hands of the court ten years hence. In choosing, there are precedents and unwritten rules aplenty to go by, but practically all of them have been broken in the past, and easily could be again.

One of the few obvious facts about selection is that most Presidents ignore the perennial cry that only lower-court judges should become Supreme Court Justices (the Constitution does not even require that Justices be lawyers, though no nonlawyer has ever made it). Of all Justices, 41 had never judged a case before ascending the nation's highest tribunal. The same goes for nine of the 14 Chief Justices, including the great John Marshall.

The argument against judges is that a broader man is often to be found elsewhere. And some see Supreme Court Justices as a breed apart--historians, prophets, politicians and philosophers, as well as judges. "The correlation between prior judicial experience and fitness for the Supreme Court," declared Felix Frankfurter, "is zero."

Senate Pitfalls. Naturally, every President must consider whether the nominee is truly able and whether he will please key groups in the body politic. The nomination must enhance presidential prestige, win instant legal applause--and, occasionally, satisfy precedents established by earlier Chief Executives. The court now has a "Jewish seat" (Fortas) and a "Catholic seat" (Brennan); if they are vacant, can the President offend those groups by appointing members of other groups?

Presidents sometimes manage to ignore traditional considerations, such as geographical representation, which started in the days when Supreme Court Justices heard cases in their home areas as well as in Washington. Since 1841, when the practice ended, 23 of 68 Justices have come from only three states--New York, Ohio, Massachusetts.* Nominating rival-party members is supposedly out; yet that heresy has been committed twelve times--mostly by Republican Presidents, though perhaps most dramatically in 1916 when Democrat Woodrow Wilson named Louis Brandeis, the court's first Jew, who despite a decidedly Wilsonian record of liberalism was a registered Republican. Harry Truman ignored the Catholic seat, which started with Chief Justice Roger Taney in 1836; no Catholic served on the court throughout Truman's seven-year term. With equal independence, Truman was the only Democrat after Wilson to name a Republican Justice (Burton).

What no President can ignore is the temper of the Senate. Any long-delayed confirmation may be a serious loss of political face, especially near election time. It is, for instance, unwise to nominate any man who is overidentified with some militant cause. As a muckraking social reformer, "Peoples Lawyer" Brandeis so irked Senate conservatives (and anti-Semites) that his confirmation took more than four months, the longest delay in Supreme Court history. Even now, a Negro nominee might rouse a similar backlash, with consequent resentment by Negro voters. When Thurgood Marshall, now Solicitor General, was named a federal appeals judge in 1961, Southern Senators blocked his confirmation for almost a full year.

Overlooked Hazards. The Senate has utterly rejected 19 nominees. In 1866, Congress was so angry with Andrew Johnson that it simply abolished the tenth court seat then in existence rather than approve a Johnson appointee. In 1930 Herbert Hoover overlooked labor opposition to Judge John J. Parker--known as "Yellow Dog" Parker in union circles for a decision upholding so-called yellow-dog labor contracts that barred workers from joining noncompa-ny unions. No nominee has been rejected since Parker, but the hazard is always present.

It was also Hoover who learned that the Senate can pressure a President into nominating its man instead of his own. After Holmes resigned in 1932, leaving the court with two New Yorkers and a Jew, Hoover's last choice was Judge Benjamin Cardozo--a New Yorker, a Jew and a Democrat to boot. Cardozo, however, had wide appeal as a reformer, and as the Depression deepened in an election year, Senate leaders indicated to the President that it was possible that no one else would be confirmed. Hoover was forced to name Cardozo--and hear his move lauded on the Senate floor as the "finest act" of his administration. The nomination was immediately and unanimously confirmed.

End of Friendship. Even more frustrating is the common presidential illusion that a hand-picked appointee will vote the "right" way when he reaches the court. In 1902, the brand-new Justice Holmes crossed Teddy Roosevelt by voting against the Government in a trustbusting suit, prompting T. R. to snarl helplessly that Holmes had no more backbone than a banana. After Wilson appointed what he thought was the "liberal" James C. McReynolds in 1914, his protege became one of the court's alltime archconservatives. Does every man change when he dons those robes? "If he is any good, he does," said Felix Frankfurter, who was himself accused of moving from left to center during his 23 years on the highest bench. As Harry Truman lamented for all Presidents: "Whenever you put a man on the Supreme Court, he ceases to be your friend. I'm sure of that."

If that is so, Lyndon Johnson stands to lose a lot of friends. He has already named one Justice, Abe Fortas, and it does not look as though Tom Clark will leave the only vacancy in the next few years. Time must soon tell on Hugo Black, 81, Earl Warren, 76, William O. Douglas, 68, and John M. Harlan, 67, whose sight is failing. Should Johnson be returned to office next year, he could wind up naming six Supreme Court Justices, the third highest presidential record* after Washington's ten and F.D.R.'s nine. Still attuned to senatorial psychology (he voted to confirm all seven nominees considered during his Senate years), L.B.J. knows enough to stay away from any unacceptable nominee. But beyond that, there is an ocean of qualities and qualifications to contemplate. The task is all the more vital since he may well determine the future makeup of the entire court.

* New York (9): Samuel Nelson, Ward Hunt, Samuel Blatchford, Rufus Peckham, Charles Evans Hughes, Harlan Stone, Benjamin Cardozo, Robert Jackson, John Harlan; Ohio (8): Noah Swayne, Salmon Chase, Morrison Waite, Stanley Matthews, William Day, John Clarke, Harold Burton, Potter Stewart; Massachusetts (6): Benjamin Curtis, Horace Gray, Oliver Wendell Holmes, William Moody, Louis Brandeis, Felix Frankfurter.* Jackson and Taft also nominated six.

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