The Supreme Court

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John Tyler’s unhappy administration provides the clearest example to date of politics at work in the rejection of Court appointees. The first Vice President to succeed to the Presidency on the death of an incumbent, Tyler had to contend for four years with the jibe that labelled him “His Accidency, the President.” A Whig, he had fallen into disfavor with his party, the congressional members of which had already censured him in a caucus vote, and he had narrowly escaped an impeachment resolution in 1842. Thus it was no surprise when the Whig-dominated Senate rejected four consecutive appointments to the Court in 1844 (one failed outright in a vote of 21 to 26, two were withdrawn, and the fourth was not acted on). Tyler played his trump with a fifth candidate: Samuel Nelson, whose distinction as the chief justice of the New York Supreme Court was so widely recognized that the Senate had no choice but to approve. Nonetheless Tyler’s record of four rejections in five tries still stands.

Five appointments have failed in the twentieth century, and several others have come close to rejection. When Louis Brandeis was presented to the Senate by Woodrow Wilson in 1916, five months of bitter political infighting were required to offset the anti-Semitic opposition that threatened to prevent the appointment of the first Jew to the Court. In the end Brandeis triumphed by a vote of 47 to 22.

The first justice rejected in this century was John C. Parker, nominated by Herbert Hoover in 1930. During the confirmation hearings it was learned that Parker ten years earlier had delivered a speech in a gubernatorial campaign in North Carolina, in which he asserted that blacks in politics were “a source of evil.” That remark, coupled with his antilabor record while serving in the North Carolina courts, doomed his appointment. Ironically, the most recent appointment to fail did so for much the same reason. A campaign speech in support of white supremacy in 1948, joined to an undistinguished judicial record in the United States Court of Appeals, led to the rejection of Richard Nixon’s appointment of G. Harrold Carswell in 1970.

That failure to confirm gave Nixon the distinction of being the first President since Grover Cleveland in 1894 to lose two consecutive appointments. Earlier in 1969 the Senate had voted to deny Clement C. Haynesworth a seat on the Supreme Court because—as one senator put it—he was not sensitive to “the appearance of impropriety.” At issue was a controversial case in which Haynesworth, as a judge on the United States Circuit Court of Appeals, had failed to disqualify himself, although there was a potential conflict of interest because of certain stocks he owned. Haynesworth’s own honesty was not in question; his sense of ethical conduct was, and given the climate of the time, even the hint of impropriety was sufficient cause for rejection.

What had produced that climate was the century’s most sensational case involving a justice of the Supreme Court. Abe Portas, already an associate justice, had been selected by Lyndon Johnson in the summer of 1968 to succeed Earl Warren as Chief Justice. Despite a distinguished public career, both as a member of the government and as a corporation counsel, Fortas’ nomination ignited the Senate. Some Republicans were incensed that the President, who had already announced he would not seek re-election, would have the opportunity to fill the central seat on the bench, and they urged that no appointment be made until a new executive had taken office in 1969. Southern conservatives, led by Strom Thurmond of South Carolina, were already distressed by the policies of the Warren Court and used the Fortas nomination as an opportunity to denounce recent Court rulings that allegedly had handcuffed the nation’s police forces. There was, too, more than a hint of anti-Semitism at the prospect of the first Jewish Chief Justice. Most compelling of all were allegations that the nominee had continued a counselling relationship with former clients of his law firm and with the President after his appointment to the Court as an associate justice in 1965. A story that he had accepted a lecturing fee of $15,000 at a summer seminar on the law, joined by the threat of a filibuster by constitutional conservatives opposed to Fortas’ legal philosophy, led President Johnson to withdraw the nomination early in October. Because no vacancy was opened on the Court, the nomination of Homer Thornberry as associate justice was nullified. Portas remained on the bench until May, 1969, when new charges—that he had accepted an annual retainer from a private foundation—led to his resignation.

Expenses of the Supreme Court in the current fiscal year total about $6.5 million, an increase of more than $1 million over the appropriation in 1973. (The budget for the federal judiciary as a whole now exceeds $210 million, up from $126 million in 1970 and $194 million in 1973.)

Approximately 75 per cent of the Court’s expenses—or nearly $5 million—covers the cost of salaries and benefits for some 350 employees, including 290 clerks, secretaries, librarians, etc., a guard force of 33 uniformed officers, and a maintenance staff of 30.

The eight associate justices receive $60,000 each in salary, the Chief Justice, $62,500. That pay scale has been in effect since 1969 and represents the seventh increase in this century. Typical salaries of the associate justices in the past were: 1878, $10,000; 1926, $20,000; 1946, $25,000; 1964, $39,500. The Chief Justice each time got an additional $500.