Naming A Justice

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FRANKFURTER: I assume he has more than one. All people have.

[Merriment.]

McCARRAN: If you have read this small volume [Laski’s Communism ], you can surely answer whether you subscribe to the doctrine?

FRANKFURTER: Have you read the book?

McCARRAN: I have just casually glanced at it.

FRANKFURTER: What would you say is its doctrine?

McCARRAN: The doctrine is the advocacy of communism. FRANKFURTER: You see, we could debate all day on whether that is in fact the doctrine of the book.

McCARRAN: Do you believe in the doctrine set forth in this book?

FRANKFURTER: I cannot answer, because I do not know what you regard as the doctrine. You have never read it.

Finally, the chair, Sen. Matthew Neely of West Virginia, put the question McCarran had been skirting:

“Are you a Communist, or have you ever been one?”

“I have never been and 1 am not now,” Frankfurter replied.

McCarran could not resist the temptation:

“By that do you mean that you have never been enrolled as a member of the Communist party?”

“I mean much more than that,” said Frankfurter. “I mean that I have never been enrolled, and have never been qualified to be enrolled, because that does not represent my view of life, nor my view of government.”

Dean Acheson, who served as Frankfurter’s counsel during the proceedings, described the reaction:

“A great roar came from that crowded room. People shouted, cheered, stood on chairs, and waved. The Chairman, banging his gavel, was inaudible. Every time the uproar would begin to quiet, someone would start it up again.”

Not every subsequent judicial nominee, no matter how congenial to the appointing President, has gone through the senatorial inquisition in such triumph. After Frankfurter’s hearing the Senate came to insist on a personal appearance, particularly before confirming a Supreme Court nomination. The bruising confrontations of recent times are only a historically inescapable development. The growth of the news media that Brandeis understood so well now brings into the popular arena a process that in the time of Story and Holmes gave partly to the Senate and entirely to the President the power to raise the pillars of the political fabric.

Of course, the fabric will, so far as the President can make certain, remain of a pattern he finds philosophically pleasing. The Supreme Court is, as Frankfurter was fond of saying, a court . Since the days of Story’s great chief, John Marshall, it has also been the umpire of the federal system, administering the complex checks and balances between executive and legislature, between state and nation, and, in the area of human rights, between government and individual. When appointing the umpire, a President understandably seeks someone who shares his definition of the strike zone.

That definition is necessarily political, taking politics as merely the practical working out of one’s deepest beliefs about our system and what it should accomplish. The President’s vision will sometimes collide with the Senate’s advise-and-consent powers—and also with the public’s own accurate perception of the Supreme Court as a political body.

As the media bring the process to the citizen’s direct attention in a manner hardly imaginable to Story or even to Holmes, the individual comes to affect the criteria by which President and Senate measure the fitness and suitability of every candidate for the Court. Today the President and Senate must consider not only how the prospective justice will vote but also about how those votes will affect the votes the rest of us cast. Now we all participate in the political process of filling the Supreme Court.