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.
Smelling blood, the progressives mounted an intense attack on Hoover’s next nominee, North Carolina appellate justice John J. Parker. The AFL and the NAACP organized to defeat him. The union federation opposed him because he had upheld lower-court injunctions in the 1927 Red Jacket case that prevented the United Mine Workers from trying to organize workers who had signed yellow-dog contracts. The NAACP attacked Parker because he had endorsed black disfranchisement in a 1920 gubernatorial campaign. Justice Brandeis wrote to his political arm, Felix Frankfurter, “Would it not be well for you to get to some of the insurgents via Max [Lowenthal] or otherwise, the objections to him?” North Carolina senator Lee Overman chaired a three-man subcommittee to consider the nomination, and bowed to the AFL’s demand that he hold hearings. George Norris, who chaired the Judiciary Committee, refused Overman’s request that Parker be permitted to appear in response to the charges.
The opposition relied entirely on one decision and one speech. They misinterpreted the Red Jacket decision, which progressive academic commentators had praised. New York senator Robert Wagner told the Senate that Parker’s anti-union and racist views showed that “he is obviously incapable of viewing with sympathy the aspirations of those who are aiming for a higher and better place in the world. His sympathies naturally flow out to those who are already on top.” This was an outrageously cheap personal smear. Parker’s genuine working-class background and disdain for artificial privilege made it especially perverse. The opponents also ignored the conflict between organized labor and black workers: Even the pro-union W. E. B. Du Bois recognized that the injunctions had “been used, not simply to protect capitalists and employers, [but] to protect minority groups of employees against whom union labor discriminates. This is true especially of Negroes.”
Norris’s committee recommended rejecting the nominee, but the Hoover administration pressed for a full Senate vindication, and fell short by one vote. The progressives had almost certainly kept a progressive off the court: Parker continued to serve on the Fourth Circuit Court of Appeals until 1958, and compiled an impressively progressive record. In eulogizing Justice Stone in 1949, he mocked originalist jurisprudence. The Parker rejection, writes historian Henry Abraham, is “now all but universally regarded not only as unfair and regrettable but as a genuine blunder.”
Hoover was profoundly angered by the Senate rebuff. In a private memorandum, he condemned legislators who ignored the people’s confidence in the Court. Hoover decided to avoid an open confrontation with his opponents, but also resolved to nominate a conservative. To appease the progressives, he believed, would be to betray the Republicans who had remained loyal to him and Parker. He accordingly chose Owen J. Roberts as a “spite” nominee. Roberts’s economic background and beliefs were more conservative than those of Parker or Hoover, but he had no objectionable record on racial or labor issues. The administration trumpeted the nominee’s conservatism, but progressives insisted on seeing Roberts as an ally. The Senate quickly confirmed him.
This final episode in the progressive campaign against the Court would have profound effects in the next decade. Roberts became the fifth vote that struck down much New Deal legislation in 1935–36, which led in turn to FDR’s scheme to “pack” the Court.
— Paul Moreno is the director of academic programs at Hillsdale College’s Kirby Center for Constitutional Studies and Citizenship.