We Have Lost Something Sacred in Today’s Judicial Nomination Process

John Jay (1745-1829) was the first Chief Justice of the United States.

By Jim O’Neal

The Supreme Court was created in 1789 by Article III of the U.S. Constitution, which stipulates “the judicial power of the United States shall be vested in one Supreme Court.” Congress organized it with the Judiciary Act of 1789.

John Jay of New York, one of the Founding Fathers, was the first Chief Justice of the United States (1789–95). Earlier, he was president of the Continental Congress (1778-79) and worked to ratify the U.S. Constitution by writing five of the Federalist Papers. Alexander Hamilton and James Madison wrote the other 85-plus essays, which were published in two volumes called “The Federalist” (“The Federalist Papers” title emerged in the 20th century).

Nearly 175 years later, in 1962, President John F. Kennedy nominated Byron Raymond “Whizzer” White to replace Associate Justice Charles Whittaker, who became chief legal counsel to General Motors (presumably with a nice salary increase). Whittaker had been the first person to serve as judge at all three levels: Federal District Court, Federal Court of Appeals, and the U.S. Supreme Court (a distinction matched by Associate Justice Sonia Sotomayor).

White was the 1960 Colorado state chair for JFK’s 1960 presidential campaign and had met both the future president and his father Joe while attending Oxford University on a Rhodes Scholarship in London when Joe Kennedy was ambassador to the Court of St James. This was after White had graduated from Colorado University Phi Beta Kappa, where he was also a terrific athlete, playing basketball, baseball and finishing runner-up for the Heisman Trophy. He is unquestionably the finest athlete to serve on the Supreme Court.

He continued mixing scholarship and athletics at Yale Law School, where he graduated No. 1 in his class magna cum laude and played three years in the National Football League for the Pittsburg Pirates (now the Steelers). He was elected to the College Football Hall of Fame in 1954.

Judge White was in the minority on the now-famous Roe v. Wade landmark decision on Jan. 22, 1973. Coincidentally, there was a companion case that has been virtually forgotten called Doe v. Bolton (Mary Doe v. Arthur K. Bolton, Attorney General of Georgia, et al.) that was decided on exactly the same day and on the identical issue (overturning the abortion law of Georgia). White was in the minority here, too.

White’s nomination was confirmed by a simple voice vote (i.e. by acclamation). He was the first person from Colorado to serve on the Supreme Court and it appears that one of his law clerks … Judge Neil Gorsuch, also from Colorado … most likely will become the second, although it is unlikely he will receive many Democratic votes, much less a voice vote.

Times have certainly changed in judicial politics and, unfortunately, for the worse … sadly. Advise and Consent has morphed into a “just say no” attitude and we have lost something sacred in the process.

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chairman and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].

Appointments to Supreme Court Have a Long History of High Drama

Chief Justice Earl Warren swears in John F. Kennedy on the cover of the Jan. 27, 1961, edition of Time magazine. This copy, signed by Kennedy, sold for $1,135.25 at a December 2012 auction.

By Jim O’Neal

On June 25, 1968, President Lyndon B. Johnson announced Chief Justice Earl Warren’s intention to retire and the nomination of Associate Justice Abe Fortas to replace him. However, after three months of acrimonious, partisan debate, the Senate refused to vote on the Fortas nomination. When Fortas asked the president to withdraw his nomination, Chief Justice Warren withdrew his resignation. “Since they wouldn’t confirm Abe, then they will be stuck with me!”

And, true to his word, Chief Justice Warren did not retire until June 1969, when President Richard Nixon replaced him with U.S. Court of Appeals Judge Warren Earl Burger.

In a bizarre twist, Justice Fortas had come under intense scrutiny and it was revealed that he had a questionable relationship with Louis Wolfson, the first modern corporate raider, according to Time magazine. This led to the resignation of Fortas – the first Supreme Court Justice to do so under these ethical circumstances.

Nixon was ecstatic that he would get to make a second nomination and he carefully chose judge Clement Haynsworth from the U.S. Court of Appeals-Fourth Circuit as part of a “Southern Strategy.” Congress seemed supportive, but to the president’s anger, frustration and embarrassment, the Judicial Committee found clear evidence of financial improprieties. Like Fortas, nothing illegal, but he went down 55-45 in a display of principled equality.

The president quickly countered with Judge Harrold Carswell, an undistinguished ex-District Judge with only six months of experience on the U.S. Court of Appeals. It was clearly an act of vengeance, intended to teach the Senate a lesson and downgrade the Court. Then, suspicious reporters dug up a statement to the American Legion in 1948: “I yield to no man in the firm, vigorous belief in the principles of white supremacy.”

Oops, there went the Southern Strategy, and the Senate voted him down.

It was another bitter defeat for the president, so Nixon turned North and picked Harry Blackmun of Minnesota and an old friend of Chief Justice Burger. He sailed through 94-0 and there would be no further vacancies for 15 months, when Nixon found himself in yet another imbroglio.

In September 1971, terminal illness compelled the retirement of Justices Hugo Black and John Marshall Harlan II, the two most influential figures and veritable giants of the law. Rather than a diligent search, Nixon tried the trial-balloon strategy and floated the name of U.S. Representative Richard Poff of Virginia, but his civil rights skeletons were easy to uncover and he withdrew. Then Nixon sent six nominees to the American Bar Association for review, but they quickly criticized them as manifesting “a relentless pursuit of mediocrity” and urged the president to “add some people of stature.”

In a dramatic television broadcast, Nixon revealed his “formal nominees” … Lewis F. Powell Jr. and a youthful (47) William Rehnquist (approved after three months of wrangling), who would serve on the court for 33 years – 19 as Chief Justice.

Whew! Next stop: March 20, 2017. Good luck, Judge Neil Gorsuch. This is a tough crowd.

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chairman and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].