Bench Memos

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Brennan’s Curious Rise to the Supreme Court


Ed Whelan reminds us that Bill Brennan was born this week — April 25 — in the year 1906. It might therefore be appropriate to recall some curious features his — Brennan’s, not Ed’s — ascent to the Supreme Court. For one thing, this man — whose work on the Court remains the most significant of any Catholic to serve there — was not nominated by a Democratic President, a fact all the more odd because Brennan behaved like a Democrat from the moment he got onto the bench. But it was Dwight Eisenhower who made the appointment. Yes, appointment because Brennan was a recess appointee. His confirmation hearings occurred after he took his seat on the high Court.

For another thing, Brennan’s Roman Catholicism was an issue – though not a big one — at the Hearing. Oddly, it was raised by a Roman Catholic Senator, one Joseph McCarthy, who seems to have suspected Brennan of latent hostility to McCarthy’s preferred means of weeding Communists out of the government. Brennan managed to give sufficient assurances. He said along the way that he recognized no “obligation superior to the oath he had taken to support the Constitution and laws of the United States.” Brennan spent the next thirty years reading his peculiar notion of what the law ought to be into the Constitution and laws of the United States.

The non-Catholic Senators present rushed forward to insist that Brennan’s religion was irrelevant. Tennessee Democrat Estes Kefauver said “it would be a great disservice” to the country “to start a precedent” of injecting religious considerations “pro and con” into such decisions as the one presented. Mississippi Democrat James Eastland declared: “Everyone agrees with that”. Oddly, some of today’s Senate Democrats would not so readily agree.


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