A Non-Political – and Entirely Political – Supreme Court Appointment

President Hoover at his desk.

by Spencer Howard

On January 12, 1932, Supreme Court Justice Oliver Wendell Holmes, Jr. submitted his resignation to President Herbert Hoover, citing ill health and age.  At 91 years old, he noted, “the time has come, and I bow to the inevitable.”  In his 30 years on the Supreme Court, Holmes had become known as the “Great Dissenter” for his brilliant opinions that were often in opposition to the majority of the court.  He was considered a “liberal” by the standards of the time, because his staunch legal realism often aligned his judicial decisions with Progressive economic and political views of that era.

Preparing to make his third nomination to the high court, President Hoover had several competing criteria to consider.  The most time-honored precedent was geography – previous Presidents often sought a suitable nominee in a state or region that was not represented on the Court.  In 1932, this suggested someone from the West Coast or Southwest – seven of the eight sitting Justices were from east of the Mississippi, the exception being George Sutherland of Utah.  A nominee from the South might also be appropriate, as the only Justice from that region was James McReynolds of Tennessee.

Progressive politicians of both parties advocated for a judge with the same liberal tendencies as Holmes in order to preserve the tenuous balance of the court, while Hoover was inclined toward a more conservative jurist.  Party affiliation was less a concern than geography or ideology, but replacing Holmes, a Republican, with a Democrat would bring the court to a more equitable 5/4 ratio.  Hoover had little political capital in the Senate due to recent stormy disagreements over economic measures to fight the Great Depression, and he was uncertain of the support he might receive, even from members of his own party.  Having seen one of his earlier nominees rejected by the Senate, Hoover resolved to proceed with caution.

Hoover’s preferred choice was his Attorney General, William D. Mitchell, but Mitchell was too conservative and too close to Hoover politically and personally to have any chance in the Senate.  Furthermore, Mitchell was not very interested in serving on the Court.  Another option was Arthur Rugg, who, like Holmes before him, was the Chief Justice of the Massachusetts Supreme Judicial Court.  By naming a successor from Massachusetts, Hoover could maintain the existing geographic profile of the Court, but Rugg was fairly conservative and would likely face stiff resistance in the Senate.

Senate Democrats had floated the name of one of their own, Senator Thomas Walsh of Montana.  Walsh was somewhat liberal and would have added a western member to the Court, but there is no indication Hoover gave him any consideration.

Another Democrat that received widespread endorsement was Benjamin Cardozo, Chief Judge of the New York Court of Appeals.  Cardozo was regarded as one of the finest legal minds in the nation, and a very able judge.  His name had appeared on Hoover’s short lists for previous Supreme Court nominations, but in addition to being a Democrat, Cardozo had two strikes against him.  First, he was from New York, and two Justices were already seated from that state – Chief Justice Charles Evans Hughes and Justice Harlan Stone.  Secondly, Cardozo was Jewish.  At that time, there were strong anti-Jewish sentiments in some parts of the country, and there was already one Jew on the bench, Justice Louis Brandeis.

But the New York Times noted, “from every part of the country the President has been importuned to name him as the man best qualified to fill the seat left vacant by Justice Holmes…only in the case of Judge Cardozo were the endorsements nation-wide in origin.”

Two powerful Progressive Republican Senators, both notably from Western states, lined up behind Cardozo – Senator William Borah of Idaho and Senator George Norris of Nebraska.  To the objections concerning geography, Senator Borah proclaimed, “If there were two Virginians on the court and John Marshall was a candidate, I don’t think there should be any hesitation.”  Hoover submitted Cardozo’s nomination to the Senate on February 15, 1932 and he was swiftly confirmed.

Praise for Hoover was nearly universal.  Most of the nation, as reflected in the press coverage of the time, saw the appointment as courageous, wise, and entirely non-political.  By appointing a judge of unquestioned character and ability despite his political and geographical affiliations, it appeared that Hoover had put the best interests of the nation above his own personal and political interests.  And certainly Cardozo was a great legal mind and a great addition to the court.

In reality, Hoover’s motivations were primarily political.  In nominating Cardozo, Hoover had mollified Borah and Norris, two Senators he had sparred with on other issues, as well as pleasing Progressives of both parties.  Most conservatives were only mildly annoyed by the appointment, as they could not dispute Cardozo’s extraordinary qualifications.  Hoover also believed that appointing an Easterner might help his chances for reelection in the fall.  Hoover’s close friend and confidant, Supreme Court Justice Harlan Stone wrote, “The interesting thing about Judge Cardozo’s appointment is that, although there is nothing political in it, it will prove, I believe, to be of immense political advantage to the President.”

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