Wednesday, December 07, 2011
Learned Hand on the Politics of Judicial Appointments
In debates over potential reforms to the judicial appointments process, there seems to be a pervasive sense that the problem of politicization is a relatively new one. In terms of the frequency with which the Senate rejects even highly qualified nominees and the extent to which overt partisanship has crept into the evaluation of lower-court nominees, that sense seems pretty accurate. More than either of his two most recent predecessors, President Obama has had a difficult time securing Senate approval of his picks for the judiciary.
I think it's helpful to appreciate, however, that the basic problem of partisanship trumping merit as a determinant of judicial appointments is anything but new. Recently, I was reading Gerald Gunther's biography of Learned Hand and came across a reminder of how the appointments process has long been an overwhelmingly political affair, even for lower-court judgeships. Gunther explains that when Jerome Frank's death in the late 1950s left vacant a seat on the Second Circuit, advocates from opposing political orientations lobbied heavily for their favored candidates to receive the next appointment. Many Republicans pushed for the selection of Leonard Moore, the U.S. Attorney for E.D.N.Y., while Democrats favored Irving Kaufman, the federal judge who had presided over the espionage trial of Julius and Ethel Rosenberg. Moreover, many on both sides appear to have viewed the choice between Moore and Kaufman as essentially political rather than merit-based. One of the significant arguments made in favor of Kaufman, for example, was that elevating him to the Second Circuit could function as a way for the President and Senate to signal their approval of his handling of the Rosenberg trial, of which leftist organizations had been fiercely critical.
The debate left Judge Hand extremely dissatisfied with the way in which it downplayed or left out considerations of merit. To Felix Frankfurter, a longtime friend, Hand wrote:
Did you see today's Times and the reasons said to be put forward in Washington for moving up Kaufmann [sic]? "To show the President approved his decision to execute the Rosenbergs."
Oh, oh, oh! How low people can get! I don't mean [Kaufman]; he didn't start that, I believe; but the Swine, the Swine, the Swine!!
Hand later repeated to Frankfurter that he was "'thoroughly sick of [his] government, especially [with respect to] the appointment of judges,'" even adding, "'What a mistake it was to let the Senate in on any appointments anyway! Democracy! How many crimes are committed in thy name!!!'"
Hand's statements were obviously hyperbolic, but now seem to reflect a sentiment held by many observers of the appointment process today. That Judge Hand critiqued the same problem fifty years ago shows that it is not a new one, and suggests that its source must lie deeper than the contemporary divisiveness of American politics.
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Sounds like someone was still resentful that he never received a Supreme Court appointment!
Posted by: David Bernstein | Dec 7, 2011 6:24:48 PM
Interesting anecdote. On the merits, though, doesn't it depend on what we consider "political"? That could mean different things.
Take the case of Eisenhower's nomination of Brennan. It was political in the sense that Eisenhower was focused on how the nomination would play in the 1956 election: Eisenhower wanted a Catholic to impress Catholics, and if, I recall, a having a Democrat was thought to be politically helpful, too. So in that sense it was a political appointment.
At the same time, there was surprisingly little interest at the time in the political valence of Brennan's decisions if confirmed. Indeed, Brennan was recess appointed, handed down some very liberal decisions as a recess appointment, and yet was still confirmed without his liberal decisions even really registering as important to the confirmation process. So in that sense it wasn't political: Eisenhower nominated Brennan without much concern as to the political impact of how he would vote.
It seems to me that if we take the former view of politics, nothing has changed; if we take the latter view, then a lot has changed.
Posted by: Orin Kerr | Dec 7, 2011 7:23:35 PM
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