Robert Bork should be on everyone’s list of the most eminent jurists who never served on the Supreme Court. His nomination ordeal gave us a new verb, “to bork” — to engage in a campaign of character assassination to keep someone off the Court.
Contesting judicial appointments on ideological, rather than patronage, grounds is a relatively new phenomenon. Stanley Matthews, who drew fire for having been counsel to the famed “robber baron” Jay Gould, may have been the first. The Senate took no action when President Hayes nominated him in 1881, and confirmed him by a 24–23 vote when President Garfield renominated him later that year. President Taft’s last appointment, Mahlon Pitney, though he had a progressive record, faced opposition from the American Federation of Labor (AFL), and needed the help of his Princeton classmate Woodrow Wilson to win confirmation. Wilson’s own nominee, Louis D. Brandeis, was thoroughly investigated by the Senate — less for his progressive jurisprudence (or Jewish identity) than about his legal ethics.
Progressive resistance began in earnest with the appointment of Pierce Butler in 1922. Butler had been a railroad counsel and, as a regent of the University of Minnesota, had led what progressives regarded as a purge of disloyal faculty. Progressive senator Robert La Follette fancifully claimed that the nomination “has done much to shake further the faith of the American people in the Supreme Court,” but his opposition gained no traction.
The progressives nearly shot themselves in the foot when they targeted Harlan F. Stone, Coolidge’s only Supreme Court appointee, in 1925: Stone would become a reliable progressive. He had served as dean of the Columbia Law School, which was attracting proponents of a more advanced form of sociological jurisprudence known as “legal realism.” At the same time, he defended some conservative New York court decisions, and had many corporate clients in private practice. This led progressives to oppose his nomination for attorney general, and then his nomination to the Supreme Court: Senator George Norris dubbed him “the [J. P.] Morgan attorney.” Stone became the first Supreme Court nominee to appear before the Senate Judiciary Committee, and was confirmed by a comfortable margin. When President Roosevelt elevated this progressive mainstay to the chief justiceship in 1941, Norris took the opportunity to apologize.
Stone was the only new appointee between 1922 and 1930, an unusually long period of stability for the Court. Progressive opposition crested when President Hoover made two appointments upon the resignation of Chief Justice Taft in February 1930 and the death of Justice Sanford a month later. Hoover quickly nominated Charles Evans Hughes for chief justice. The Senate had changed its rules in 1929, and allowed floor debate on nominations, giving progressive court-critics and interest groups a new stage. Some senators objected to the fact that Hughes had resigned from the Court to seek the presidency in 1916. But progressive opposition centered on the belief that, as in the case of Stone, having had corporate clients would produce judicial bias in favor of big business. “The man who has never felt the pinch of hunger and who has never known what it was to be cold, who has never been associated with those who have earned their bread by the sweat of their faces, but who has lived in luxury, who has never wanted for anything that money could buy, is not fit to sit in judgment in a contest between organized wealth and those who toil,” Norris thundered. La Follette added that “organized greed and the rights of the masses” were at issue; The New Republic agreed. Though the administration was losing influence in Congress, the Senate confirmed Hughes, 52–26.