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A recent Supreme Court appointment in an election year — without controversy

Members of the Supreme Court applaud during ceremonies at the Supreme Court in 1986. From left are Justices William Brennan Jr., Byron White, Thurgood Marshall, Harry Blackman, Lewis Powell, William Rehnquist, John Paul Stevens and Sandra Day O’Connor. Brennan, one of the most influential jurists in American history and primary architect of the individual-rights revolution in the law through the 1960s, died in 1997. (AP Photo)

“Not since 1932 has the Senate confirmed in a presidential election year a Supreme Court nominee to a vacancy arising in that year. And it is necessary to go even further back — to 1888 — in order to find an election year nominee who was nominated and confirmed under divided government, as we have now.”

—from a letter signed by Republican members of the Senate Judiciary Committee, Feb. 23, 2016

It was a presidential election year and the presidency and the Senate were controlled by different parties. A Supreme Court justice announced in September he would resign within weeks, and by Oct. 16, without any political rancor, a new Supreme Court Justice took his seat on the court.

Surely, as the Judiciary Committee’s letter suggests, this switch happened in the late 1800s. But this actually also took place just 60 years ago—in 1956, when Dwight Eisenhower, a Republican, was president and the Senate was held by Democrats.

Why doesn’t the elevation of William Brennan ever get cited as an important precedent? There’s a reason, but it’s a bit more technical than one might think. The most striking thing, from today’s perspective, is that the party controlling the Senate raised no objections to Eisenhower’s right to name a justice in a presidential election year. 

The Facts

On Sept. 7, two months before the presidential election, Justice Sherman Minton announced that he planned to retire because of ill health on Oct. 15. According to the research of American University law professor Stephen Wermiel, who co-wrote a biography of Brennan with Seth Stern, Eisenhower called his attorney general and immediately suggested that he start thinking about a nominee who was a practicing Catholic and even a conservative Democrat.

Eisenhower, who was running for reelection, has already appointed two Republicans to the court and apparently had the quaint notion that he should be bipartisan in his court selections. He was interested in a Catholic because the so-called “Catholic seat” had been vacant for a number of years and Francis Cardinal Spellman, the archbishop of New York, had pressed him earlier that year to appoint a Catholic the next time there was a vacancy.

Politics was not far from Eisenhower’s mind. While he later won reelection handily, Eisenhower at the time was concerned about the strength of the Democratic nominee, Adlai Stevenson. He was also worried about reports of a popular Catholic surrogate for Stevenson—then-Sen. John F. Kennedy (D-Mass.). So a Catholic appointee certainly looked attractive. 

Eisenhower also had another criterion — new justices should be under the age of 62. He was also interested in selecting someone from the state courts. Brennan, 50, at the time of his appointment was an associate justice on the New Jersey Supreme Court.

Most significantly for today’s context, there was little controversy about Eisenhower going forward with a Supreme Court pick even though the election was just weeks away.

“In the days after Minton’s announcement, President Eisenhower mentioned the process of filling the vacancy at several news conferences, but he gave few clues,” wrote Wermiel in a 1994 paper. “Brennan’s name was not among those on which speculation focused in the news media; those included Secretary of State John Foster Dulles, former New York Governor Thomas E. Dewey, and Attorney General [Herbert] Brownell.”

It turned out there were only a handful of Catholic Democrat jurists on state courts who were under the age of 62. The White House was more focused on whether Brennan was a practicing Catholic—even checking with his parish priest to make sure he attended mass regularly—than on whether he was really a conservative. He actually was quite liberal, as would become apparent during his 34 years on the Supreme Court. Cardinal Spellman received one of the first calls from the White House about the choice, but he was not happy with the selection after all.

By Sept. 27, just 20 days after Minton’s announcement, Eisenhower was ready to make a decision. He even dropped a hint at a news conference: “When you come to the Supreme Court, my people look up the record of every sitting judge that they can find, district courts and circuit courts in the Federal and all of the supreme court justices in the states.”

On Sept, 29, a Saturday, Brennan met with Ike at the White House for a conversation that lasted all of 20 minutes. (Brennan was flabbergasted to learn he was being offered a Supreme Court position; he thought he was being asked to join a judicial task force.) Eisenhower told him he would announce the appointment on Monday, but Brennan could tell his family in the meantime.

But as Brennan was completing the calls, Eisenhower decided he would simply announce the appointment that day. The news media was called in, and that was that. (Brennan failed to tell his wife that the announcement had been moved up two days, and so she was stunned to find the house surrounded by reporters.)

Wermiel said Eisenhower always intended to make a recess appointment — he had already appointed Chief Justice Earl Warren through the maneuver — but he moved up the announcement in part because he was afraid it would leak. Wermiel, in the biography of Brennan, also suggests the political calendar played a role — a Monday announcement would have interfered with a planned campaign swing. Moreover, Eisenhower knew that Stevenson was just about to take a high-profile campaign trip through the Catholic sections of the Northeast, including Brennan’s home state of New Jersey.

Because of the recess appointment, Brennan could immediately begin serving on the court, which was about to start a new term. Eisenhower officially nominated Brennan in January, and he was confirmed in March, again with little controversy. (Eisenhower did receive some angry letters from citizens who were upset he appointed a Catholic — or did not appoint a Republican. But Catholic voters were pleased.)

“Consider the spirit of cooperation involved in making the recess appointment without real controversy and with the idea that Brennan would subsequently be nominated and confirmed early in the next Congress,” said Wermiel. “Hardly the same kind of highly charged partisan atmosphere we have now.”

Taylor Foy, press secretary for the judiciary committee, says the GOP letter is accurate because Brennan was neither nominated by the president nor considered by the Senate during the 1956 presidential election year:  “He was recess appointed. A freshly re-elected President Eisenhower submitted William Brennan’s nomination to the Senate in January of 1957, a hearing was held, and Brennan was eventually confirmed in March of 1957—all of which occurred following the presidential election in 1956.”

The Pinocchio Test

This history story is open to interpretation, so we are not going to make a Pinocchio ruling. Brennan indeed was not formally nominated until after the election.

Part of the problem with most assertions of precedent is that very few Supreme Court vacancies have occurred during election years. So there is very little data to make a case one way or the other.

But it is difficult to completely dismiss the Brennan case as precedent. Eisenhower placed a new Justice on the Supreme Court just weeks before the election even though the government was divided. Moreover, there was virtually no controversy about his right to do so, even though it is clear that political considerations played a role in Brennan’s selection.

Eisenhower could have formally nominated Brennan, but a recess appointment ensured a full court was in place near the start of the new term–which Democrats say is their goal in the current fight over Antonin Scalia’s replacement.

We certainly cannot imagine a recess appointment today would meet with much favor with the Judiciary Committee majority. Indeed, Republicans have made it clear they will do everything possible to thwart one.

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