Woodrow Wilson appointed three Associate Justices to theSupreme Court of the United States,James Clark McReynolds,Louis Brandeis, andJohn Hessin Clarke.
Following the sudden death ofHorace Harmon Lurton in 1914, Wilson nominated his Attorney General,James Clark McReynolds. Some accounts "attribute Wilson's choice of McReynolds to inattention, or his desire to kick a politically troublesome attorney-general upstairs".[1] Nominated on August 19, 1914, the Senate confirmed him ten days later on a 44–6 vote.[2] When nominating McReynolds, Wilson erroneously believed him to be a liberal, but during his tenure as a justice, McReynolds became "best remembered as a stalwart conservative and a foe of economic regulatory power by government."[3] Over his 26 years on the Court, McReynolds strongly opposed theNew Deal and was areactionary,[4] known for his openracism andantisemitism.[3]
Following the death ofJoseph Rucker Lamar in 1916, Wilson surprised the nation by nominatingLouis Brandeis to become a member of theU.S. Supreme Court.[5] Wilson "evidently did not consider anyone else".[6] The nomination was bitterly contested and denounced by conservative Republicans, including former presidentWilliam Howard Taft, whose credibility was damaged by Brandeis in early court battles, where he called Taft a "muckraker".[7]: 470 Further opposition came from members of the legal profession, including formerAttorney GeneralGeorge W. Wickersham and former presidents of theAmerican Bar Association, such as ex-Senator andSecretary of StateElihu Root of New York, who claimed Brandeis was "unfit" to serve on the Supreme Court.[7]: 470–475
The controversy surrounding Brandeis's nomination was so great that theSenate Judiciary Committee, for the first time in its history, held a publichearing on the nomination, allowing witnesses to appear before the committee and offer testimony both in support of and in opposition to Brandeis's confirmation. While previous nominees to the Supreme Court had been confirmed or rejected by a simple up-or-down vote on the Senate floor—often on the same day on which the President had sent the nomination to the Senate—a then-unprecedented four months lapsed between Wilson's nomination of Brandeis and the Senate's final confirmation vote.[8]
What Brandeis's opponents most objected to was his "radicalism." TheWall Street Journal wrote of Brandeis, "In all the anti-corporation agitation of the past, one name stands out ... where others were radical, he was rabid."[9] TheNew York Times claimed that having been a noted "reformer" for so many years, he would lack the "dispassionate temperament that is required of a judge."[10]: 73 Brandeis's successor on the Court,Justice William O. Douglas, wrote many years later that the nomination of Brandeis "frightened the Establishment" because he was "a militant crusader for social justice."[11]
According to legal historian Scott Powe, much of the opposition to Brandeis' appointment also stemmed from "blatant anti-semitism."[8] Taft would accuse Brandeis of using his Judaism to curry political favor, and Wickersham would refer to Brandeis' supporters (and Taft's critics) as "a bunch of Hebrew uplifters."[12] SenatorHenry Cabot Lodge privately complained that "If it were not that Brandeis is a Jew, and a German Jew, he would never have been appointed[.]"[13]
Those in favor of seeing him join the court were just as numerous and influential. Supporters included attorneys, social workers, and reformers with whom he had worked on cases, and they testified eagerly in his behalf. Harvard law professorRoscoe Pound told the committee that "Brandeis was one of the great lawyers," and predicted that he would one day rank "with the best who have sat upon the bench of the Supreme Court." Other lawyers who supported him pointed out to the committee that he "had angered some of his clients by his conscientious striving to be fair to both sides in a case."[10]: 208
In May, when the Senate Judiciary Committee asked the Attorney General to provide the letters of endorsement that traditionally accompanied a Supreme Court nomination, Attorney GeneralGregory found there were none. President Wilson had made the nomination on the basis of personal knowledge. In reply to the Committee, President Wilson wrote a letter to the Chairman, SenatorCharles Culberson, testifying to his own personal estimation of the nominee's character and abilities. He called his nominee's advice "singularly enlightening, singularly clear-sighted and judicial, and, above all, full of moral stimulation." He added:
I cannot speak too highly of his impartial, impersonal, orderly, and constructive mind, his rare analytical powers, his deep human sympathy, his profound acquaintance with the historical roots of our institutions and insight into their spirit, or of the many evidences he has given of being imbued, to the very heart, with our American ideals of justice and equality of opportunity; of his knowledge of modern economic conditions and of the way they bear upon the masses of the people, or of his genius in getting persons to unite in common and harmonious action and look with frank and kindly eyes into each other's minds, who had before been heated antagonists.[14]
A month later, on June 1, 1916, the Senate officiallyconfirmed his nomination by a vote of 47 to 22. Forty-four Democratic Senators and three Republicans (Robert La Follette,George Norris, andMiles Poindexter) voted in favor of confirming Brandeis. Twenty-one Republican Senators and one Democrat (Francis G. Newlands) voted against his confirmation.[15]
Once on the Court, Brandeis kept active politically but worked behind the scenes, as was acceptable at the time. He was an advisor to Franklin Roosevelt's New Deal through intermediaries.[16] Many of his disciples held influential jobs, especially in the Justice Department. Brandeis and Felix Frankfurter often collaborated on political issues.[17][18]
In June 1916, a vacancy arose on the Supreme Court when Associate JusticeCharles Evans Hughes resigned to accept theRepublicannomination for President. Wilson wanted to fill the seat by appointing his Attorney General,Thomas W. Gregory, but Gregory demurred and suggestedJohn Hessin Clarke instead.[19] Wilson had previously appointed Clarke to a seat on theUnited States District Court for the Northern District of Ohio.
After havingNewton Baker (Wilson's Secretary of War and a close friend of Clarke's) speak with Clarke to confirm his opposition to trusts,[20] Wilson offered Clarke the nomination. Though Clarke was reluctant to abandon trial for appellate work, he felt he could not pass on such an honor and accepted. Wilson sent his name to the Senate on July 14, 1916 and Clarke was confirmed by the United States Senate unanimously ten days later.
Following is a list of individuals who were mentioned in various news accounts and books as having been considered by Wilson for a Supreme Court appointment:–
The famed juristLearned Hand "thought it appropriate for a federal judge to offer private advice, as he so frequently did with Theodore Roosevelt, so long as there was no prominent public identification with the cause."