1 On the 1976 election see Neff, Alan, Breaking with Tradition: A Study of the U.S. District Judge Nominating Commissions, 64 Judicature 256,258 (1980), and Larry C. Berkson & Susan B. Carbon, The United States Circuit Judge Nominating Commission: Its Members, Procedures, and Candidates 1 (Chicago: American Judicature Society, 1980). On the 1980 election see N.Y. Times, Oct. 2, 1980, at 1, col. 2; id., § 2, at 13, col. 1; Oct. 3, 1980, at 1, col. 1; Oct. 15, 1980, at 22, col. 4; Oct. 28, 1980, at 27, col. 1.Google Scholar

2 O. W. Holmes, Jr., The Common Law 1 (Boston: Little, Brown, & Co., 1881).Google Scholar

3 Fiss, Owen M., Objectivity and Interpretation, 34 Stan. L. Rev. 739 (1982);Levinson, Sanford, Law as Literature, 60 Tex. L. Rev. 373 (1982), as well as the other articles in Symposium: Law and Literature, 60 Tex. L. Rev. 373–586 (1982).Google Scholar

4 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980); Jesse H. Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (Chicago: University of Chicago Press, 1980); Alexander M. Bickel, The Morality of Consent (New Haven, Conn.: Yale University Press, 1975); Tushnet, Mark, Darkness on the Edge of Town: The Contributions of John Hart Ely to Constitutional Theory, 89 Yale L.J. 1037 (1980).Google Scholar

5 E.g., in his study of judicial lawmaking in the first half of the nineteenth century Horwitz ignores any questions about how recruitment of judges might transform the law. Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge: Harvard University Press, 1977). Similarly, in studying the Second Circuit during Learned Hand's chief judgeship, Schick only cursorily examines appointments of judges to that court. Marvin Schick, Learned Hand's Court ch. 1 (Baltimore: Johns Hopkins Press, 1970). The major historical studies of appointments are Kermit L. Hall, The Politics of Justice: Lower Federal Judicial Selection and the Second Party System, 1829–61 (Lincoln: University of Nebraska Press, 1979); id., The Children of the Cabins: The Lower Federal Judiciary, Modernization, and Political Culture, 1789–1899, 75 Nw. U.L. Rev. 423 (1980); Evan Haynes, The Selection and Tenure of Judger (Newark, N.J.: National Conference of Judicial Councils, 1944); Henry J. Abraham, Justices and Presidents: A al History of Appointments to the Supreme Court (New York: Oxford University Press, 1974); Joseph P. Harris, The Advice and Consent of the Senate: A Study of the Confirmation of Appointments by the United States Senate (Berkeley & Los Angeles: University of California Press, 1953); David J. Danelski, A Supreme Court Justice Is Appointed (New York: Random House, 1964).Google Scholar

6 Harold W. Chase, Federal Judges: The Appointing Process (Minneapolis: University of Minnesota Press, 1972); Sheldon Goldman & Thomas P. Jahnige, The Federal Courts as a Political System (2d ed. New York: Harper & Row, 1976); Joel B. Grossman, Lawyers and Judges: The ABA and the Politics of Judicial Selection (New York: John Wiley & Sons, 1965); Richard J. Richardson & Kenneth N. Vines, The Politics of Federal Courts: Lower Courts in the United States (Boston: Little, Brown & Co., 1970); John R. Schmidhauser, Judges and Justices: The Federal Appellate Judiciary (Boston: Little, Brown & Co., 1979); J. Woodford Howard, Jr., Courts of Appeals in the Federal Judicial System: A Study of the Second, Fifth and District of Columbia Circuits ch. 4 (Princeton, N.J.: Princeton University Press, 1981); Goldman, Sheldon, Judicial Appointments to the United States Courts of Appeals, 1967 Wis. L. Rev. 186; Slotnick, Elliot E., Federal Appellate Judge Selection: Recruitment Changes and Unanswered Questions, 6 Just. Sys. J. 283 (1981). For a bibliography see Glenn R. Winters, ed., Judicial Selection and Tenure: Selected Readings 232–41 (rev. ed. Chicago: American Judicature Society, 1973).Google Scholar

7 This study is the first part of a larger study of the jurisprudence of the U.S. Court of Appeals for the Seventh Circuit. The important questions of the relationships between the process of election and judicial performance will be examined in later articles.Google Scholar

8 See sec. II infra.Google Scholar

9 See secs. III.I, III.C.2, III.E. infra.Google Scholar

10 See sec. III.D infra.Google Scholar

11 See secs. III.B.2, III.C infra.Google Scholar

12 Harris, supra note 5, at 17–35; Grossman, supra note 6, at 21–24; Chase, supra note 6, at 5–6; Ferling, John, The Senate and Federal Judges: The Intent of the Founding Fathers, 2 Capitol Stud. 57 (1974). Chase, , supra, relying on Burke Shartel, Federal Judges–-Appointment, Supervision, and Removal–-Some Possibilities Under the Constitution (pt. l), 28 Mich. L. Rev. 485, 500–501 (1930), argues that lower federal court judges are “inferior officers” and thus could be appointed by the president alone, if Congress chose. Chase's argument seems convincingly refuted by the debates in the constitutional convention. See Ferling, supra, at 62–70; see also Hall, Politics of Justice, supra note 5, at 194 n.12. As Chase points out, whatever the framers' intent, since 1789 the process has always been presidential nomination with advice and consent of the Senate. The 1891 Evarts Act setting up the Circuit Courts of Appeals gave the president the right to appoint circuit judges “by and with the advice and consent of the Senate.” Circuit Court of Appeals (Evans) Act, ch. 517.26 Stat. 826 (1891) (current version in scattered sections of 28 U.S.C. (1982)). See 28 U.S.C. § 43(a) (creation of courts of appeals) and § 44(a) (appointment of circuit judges) (1982). The 1948 recodification of the U .S. Statutes gave the president the same power to nominate and appoint federal district judges as he had had for circuit (courts of appeals) judges since 1891. Ch. 646, § 133, 62 Stat. 895 (1948), 28 U.S.C. § 133 (1982). See Berkson & Carbon, supra note 1, at 13–14.Google Scholar

13 Gordon S. Wood, The Creation of the American Republic, 1776–1787, at 551–53 (Chapel Hill: University of North Carolina Press, 1969); Ferling, supra note 12, at 62–66.Google Scholar

14 Wood, supra note 13, at 453–63, 552–53; Ferling, supra note 12, at 62–63.Google Scholar

15 The Federalist No. 76, at 511 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).Google Scholar

16 Id. at 513.Google Scholar

17 Id. at 512.Google Scholar

18 Hall, Politics of Justice, supra note 5, at 171–74.Google Scholar

19 Harris, supra note 5, at 72–92.Google Scholar

20 Richardson & Vines, supra note 6, at 58–68; Grossman, supra note 6, at 24–48; Goldman, supra note 6; Howard, supra note 6, at 99.Google Scholar

21 The best study of the operation of the blue slip and senatorial courtesy is Slotnick, Elliot E., Reforms in Judicial Selection: Will They Affect the Senate's Role? 64 Judicature 61 (1980). In interviewing senators following the Carter reforms of the judicial selection process, Slotnick found the blue slip tactic rarely used, but he also found senators reluctant to abolish the custom, as Sen. Edward Kennedy had formally proposed doing. Id. at 65, 69–72.Google Scholar

22 Id. at 62–63; Chase, supra note 6, at 6–13; Harris, supra note 5, at 40–41. 215–37. The history of senatorial courtesy is disputed. Hall, Children of the Cabins; supra note 5, at 430 n.44, relies on his work (Hall, Politics of Justice, supra note 5, at 171–72) to argue that Harris is incorrect in finding antebellum senatorial control of lower court selections through the use of senatorial courtesy. Hall argues that senatorial courtesy is a late nineteenth-century development. Harris, Chase, and Slotnick all demonstrate that from the 1930s on a senator had to state reasons for finding a candidate “personally obnoxious” in order to convince his fellow senators to block a confirmation. Merely reciting the phrase would no longer suffice.Google Scholar

23 See articles cited in note 20 supra.Google Scholar

24 Chase, supra note 6, at 43–44; see also 28 U.S.C. §44 (a), (c) (1976).Google Scholar

25 Chase, supra note 6, at 20–26. Grossman, supra note 6, is so far the definitive study of the role of the ABA. Because the ABA Committee on Federal Judiciary did not begin until 1946–47, its work is beyond the scope of this study.Google Scholar

26 Chase, supra note 6, at 7.Google Scholar

27 As we will see in examining the early part of both Theodore Roosevelt's presidency and Franklin Roosevelt's, patronage considerations may also dominate administrations in which the role of the federal government is perceived to be to promote change but the importance of lower federal courts in achieving that goal is not perceived. As discussed in sec. II, the form in which change took place during those periods made it quite likely that those administrations would come to see the importance of the courts.Google Scholar

28 Regardless of which pattern describes a president's appointments, all presidents overwhelmingly appointed judges from their own party. Democrats appointed Democrats 94% of the time and Republicans appointed Republicans 87.3% of the time. Biographical Dictionary of the Federal Judiciary, comp. Harold Chase et al., xvi (Detroit: Gale Research Co., 1976). The question is not whether these presidents were partisan or whether these appointments were political (which of course they were), but whether partisan politics was the only issue or most dominant motive for the appointment.Google Scholar

29 Hall, Politics of Justice, supra note 5, at 113; Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive 529 (New York: Macmillan Co., 1937).Google Scholar

30 Cummings & McFarland, supra note 29, at 529–34; Chase, supra note 6, at 17–18; Richardson & Vines, supra note 6, at 17–18, 60; Grossman, supra note 6, at 24–26.Google Scholar

31 See sec. III.D.1 infra, text and notes.Google Scholar

32 See notes 65–66, 82–86 infra and accompanying text.Google Scholar

33 See discussion in sec. III.D infra.Google Scholar

34 See sources cited in note 30 supra.Google Scholar

35 The memoranda are found in the records of the Department of Justice located in the National Archives. Scholars have previously used the memoranda found in the files of individual appointees. I located administrative files dealing with court of appeals appointments during the Wilson presidency that seemed never to have been examined before.Google Scholar

36 Grossman, supra note 6, at 27–28; Howard, supra note 6, at 99; Abraham, supra note 5; Glendon Schubert, Judicial Policy Making: The Political Role of the Courts 198–203 (Glenview, Ill.: Scott, Foreman & Co., 1974).Google Scholar

37 Hall, Politics of Justice, supra note 5, at 91.Google Scholar

38 Id. at 173–74.Google Scholar

39 See note 22 supra. See also Morton Keller, Affairs of State: Public Life in Nineteenth Century America (Cambridge: Harvard University Press, Belknap Press, 1977); David J. Rothman, Politics and Power in the United States Senate, 1869–1901 (Cambridge: Harvard University Press, 1966).Google Scholar

40 Schmidhauser, supra note 6, at ch. 3; Biographical Dictionary of the Federal Judiciary, supra note 28, at ix-xxiv; Richard K. Burke, The Path to the Court: A Study of Federal Judicial Appointments 197–269 (Ph.D. diss., Vanderbilt University, 1958); U.S. Senate, Committee on the Judiciary, 92d Cong., 2d Sess., Legislative History of the United States Circuit Courts of Appeals and the Judges Who Served During the Period 1801 Through May 1972, at 1–13 (Comm. Print 1972).Google Scholar

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44 Writing on the Progressive Era is voluminous. An excellent historiographic essay is Rogers, Daniel T., In Search of Progressivism, 10 Revs. Am. Hist. 113 (1982). which contains citations to much of the relevant literature. Perhaps the most influential works are Richard Hofstadter, The Age of Reform: From Bryan to F.D.R. (New York: Alfred A. Knopf, 1955); Wiebe, supra note 42; Hays, Samuel P., The Politics of Reform in Municipal Government in the Progressive Era, 55 Pac. Nw. Q. 157 (1964); Gabriel Kolko, The Triumph of Conservatism: A Reinterpretation of American History 1900–1916 (New York: Free Press of Glencoe, 1963); James Weinstein, The Corporate Ideal in the Liberal State, 1900–1918 (Boston: Beacon Press, 1968); Filene, Peter G., An Obituary for the Progressive Movement, 22 Am. Q. 20 (1970). For the contours of some of the debates see the selections of readings in Arthur Mann, ed., The Progressive Era (2d ed. Hinsdale, Ill.: Dryden Press, 1975).Google Scholar

45 Graebner, William, Federalism in the Progressive Era: A Structural Interpretation of Reform, 64 J. Am. Hist. 331 (1977). McCormick, Richard L., The Discovery That Business Corrupts Politics: A Reappraisal of the Origins of Progressivism, 86 Am. Hist. Rev. 247, 268–69 (1981);Scheiber, Harry N., Federalism and Legal Process: Historical and Contemporary Analysis of the American System, 14 Law & Soc'y Rev. 663, 680–81 (1980); id., Federalism and the American Economic Order, 1789–1910, 10 Law & Soc'y Rev. 57, 107–18 (1975); James Willard Hurst, The Growth of American Law: The Law Makers 420 (Boston: Little, Brown & Co., 1950). For a study of this trend as seen through the career of Justice Frankfurter, see Michael E. Parrish, Felix Frankfurter and His Times: The Reform Years ch. 2 (New York: Free Press, 1982).Google Scholar

46 Hurst, supra note 41, at 146.Google Scholar

47 Felix Frankfurter & James M. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System 106 (New York: Macmillan Co., 1928).Google Scholar

48 David E. Kyvig, Repealing National Prohibition 20–35 (Chicago: University of Chicago Press, 1979).Google Scholar

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51 Parrish, supra note 45, at ch. 3; Judith Icke Anderson, William Howard Taft: An Intimate History ch. 17 (New York: W. W. Norton & Co., 1981); John M. Blum, The Progressive Presidents: Theodore Roosevelt, Woodrow Wilson, Franklin D. Roosevelt, Lyndon B. Johnson 60–62 (New York: W. W. Norton & Co., 1980); Arthur S. Link, Woodrow Wilson and the Progressive Era, 1910–1917 (New York: Harper & Brothers, 1954); id., Wilson, vol. 1, The Road to the White House (Princeton, N.J.: Princeton University Press, 1947).Google Scholar

52 Walter Dean Burnham, Party Systems and the Political Process, in William Nisbet Chambers & Walter Dean Burnham, eds., The American Party Systems: Stages of Political Development 277, 302–7 (New York: Oxford University Press, 1967).Google Scholar

53 Hurst, supra note 41, at 145–46 (footnote omitted).Google Scholar

54 The figures are taken from a workload study of the Seventh Circuit prepared for this project. I have examined the jurisdictional source of all reported appeals decided between 1891 and 1945.Google Scholar

55 Baum, Lawrence, Goldman, Sheldon, & Sarat, Austin, Research Note: The Evolution of Litigation in the Federal Courts of Appeals, 1895–1975, 16 Law & Soc'y Rev. 291 (198182-).Google Scholar

56 Goldman, supra note 6, at 198; id., Reagan's Judicial Appointments at Mid-Term: Shaping the Bench in His Own Image, 66 Judicature 335, 342 (1983).Google Scholar

57 Chase, supra note 6, at 12 (quoting a letter to Chase from Hoover).Google Scholar

58 Louis FitzHenry to Rep. Henry T. Rainey, Dec. 7, 1930, FitzHenry Collection, Special Collections, Illinois State University, Normal.Google Scholar

59 FitzHenry to Judge Evan Evans, July 24, 1930, FitzHenry Collection, supra note 58.Google Scholar

60 Schmidhauser, supra note 6, at 92–95. 98; see also Goldman, Sheldon, A Profile of Carter's Judicial Nominees, 62 Judicature 247, 249 (1978).Google Scholar

61 Blum, supra note 51. For a study of the links between the Wilson and F.D.R. administrations see Otis L. Graham, Jr., An Encore for Reform: The Old Progressives and the New Deal (New York: Oxford University Press, 1967).Google Scholar

62 The information is taken mostly from the biographies contained in Biographical Dictionary of the Federal Judiciary, supra note 28, and Senate Committee on the Judiciary, supra note 40. I have excluded the appointments to the U.S. Court of Appeals for the District of Columbia because the absence of any senators or geographic representation and the peculiar local jurisdiction of the court made it dissimilar to other courts of appeals. Not until the post-World War II period, with the increase in administrative rule making, did the D.C. Circuit become the most important court in supervising the work of the federal agencies. Then Congress placed venue for the review of many agency actions either exclusively in the D.C. Circuit, or made it one of a litigant's choices. See text, table, and notes in Note, Venue for Judicial Review of Administrative Actions: A New Approach, 93 Harv. L. Rev. 1735, 1737, 1739, 1755–58 (1980). Also suggestive of the different nature of the D.C. Circuit before World War II is that when T.R. discussed his judicial appointments with a journalist at the end of his presidency, he included D.C. appointments not with the other federal courts of appeals, but rather with the territorial and Court of Claims appointments. Roosevelt to Mark Sullivan, May 13, 1907, in The Letters of Theodore Roosevelt, ed. Elting E. Morison, vol. 5, The Big Stick: 1905–1907, no. 4320 (Cambridge: Harvard University Press, 1952) [hereinafter T. Roosevelt Letters]. One should also note that in his fine study of the legal challenges to the New Deal agencies Irons does not mention the D.C. Circuit. Peter H. Irons, The New Deal Lawyers (Princeton, N.J.: Princeton University Press, 1982).Google Scholar

63 Harris, supra note 5, at 90–93.Google Scholar

64 Roosevelt to Thomas C. Platt, June 17, 1906, T. Roosevelt Letters, supra note 62, no. 3944, at 304 (quoting Platt's letter).Google Scholar

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71 Roosevelt to Sullivan, supra note 62; David Burner, entry on Willis Van Devanter, in Leon Friedman & Fred L. Israel, eds., The Justices of the United States Supreme Court 1789–1969: Their Lives and Major Opinions, vol. 3, at 1945, 1945–48 (New York: Chelsea House in association with R.R. Bowker Co., 1969).Google Scholar

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76 Braeman, supra note 75, at 76–77; Bowers, supra note 75, at 86.Google Scholar

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79 Chi. Tribune, Feb. 27, 1905, at I; Sheboygan Herald, Mar. 4, 1905, at 2; Peter Grosscup to Paul Morton, Jan. 26, 1905, Archives of the Seventh Circuit History Project, Chicago. This was just the first of the Spooner-La Follette battles over patronage. See T. Roosevelt Letters, supra note 62, nos. 3969, 3970.Google Scholar

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81 Grosscup to Morton, supra note 79; Francis Baker to Albert Beveridge, Feb. 3, 1905, Beveridge Papers, supra note 75. Even when Roosevelt fought with a senator in 1905, as in the appointment of a district judge in Oregon, it was not over policy issues. Because it appeared the Oregon senator was attempting to appoint a U.S. attorney who would fail to prosecute a land fraud conspiracy involving the senator's friends, T.R. refused to accept the senator's nominee for district judge and chose instead Charles Wolverton, because, he wrote, “I have received information about you that satisfies me that in point of integrity, force, and judicial capacity you more than anyone else satisfy the high requirements incident to satisfactorily filling a position on the Federal bench.” There is no mention of labor-management issues or corporate regulation, as there was with the later appointments. Roosevelt to Charles E. Wolverton, Nov. 21, 1905, T. Roosevelt Letters, supra note 62, no. 3734, at 86.Google Scholar

82 That first of Roosevelt's two fights with Senator Platt over district judgeships resulted in George Holt's appointment despite the senator's displeasure. See Roosevelt to Thomas C. Platt, Feb. 25, 1903, T. Roosevelt Letters, supra note 62, vol. 3, The Square Deal: 190–1903, no. 2598 (1951). The text accompanying notes 6465 supra describes Roosevelt's battle with the senator over the appointment of Hough to the district court in 1906.Google Scholar

83 J. K. Townsend, May 7, 1907; Henry W. Taft, May 8, 1907; C. C. Burlingham, May 3, 1907–-all in Dept. Just. Files, supra note 69. Roosevelt to Sullivan, supra note 62, at 669.Google Scholar

84 Morison, Elting E., Theodore Roosevelt Appoints a Judge, 72 Proc. Mass. Hist. Soc'y 309 (1963).Google Scholar

85 See letters cited in note 83 supra.Google Scholar

86 Henry Stimson to T. Roosevelt, May 7, 1907, Theodore Roosevelt Papers, supra note 70.Google Scholar

87 P. C. Knox to T. Roosevelt, July 1, 1907, Dept. Just. Files, supra note 69.Google Scholar

88 Roosevelt to William Howard Taft, July 15, 1907, T. Roosevelt Letters, supra note 62, no. 4371, at 719. See also id., July 10, 1907, no. 4362. In that letter T.R. shows that he feels policy considerations should dominate political considerations, although he is willing to give in if Taft feels disappointing the senators by not appointing Noyes would harm Taft's presidential chances in 1908. “I am perfectly willing to nominate Beach and let [the senators] do as they think best about supporting him. … I am going to follow your judgment in the matter if you feel very strongly on the the subject…. [Beach's] record on labor inclines me to nominate him anyhow.”Google Scholar

89 Roosevelt to Charles Sanger Mellen, Aug. 31, 1907, T. Roosevelt Letters, supra note 62, no. 4427.Google Scholar

90 Roosevelt to Henry Cabot Lodge, July 10, 1902, T. Roosevelt Letters, supra note 82, no. 2386, at 288; Garraty, supra note 67, at 224–25.Google Scholar

91 Roosevelt to Lodge, supra note 90, at 289.Google Scholar

92 Harbaugh, supra note 67, at 347–48, 358–60; Roosevelt to Elihu Root, Sept. 4, 1906, T. Roosevelt Letters, supra note 62, no. 4032; Roosevelt to Joseph V. Quarles, Oct. 29, 1906, id., no. 4127.Google Scholar

93 Text accompanying notes 83–85 supra.Google Scholar

94 Roosevelt to Charles B. Morrison, Mar. 22, 1906, in T. Roosevelt Letters, supra note 62, no. 3829, at 190. See also Frankfurter & Landis, supra note 47, at 115–19, which describes the legislature's reaction to the Humphrey decision–-Criminal Appeals Act, ch. 2564, 34 Stat. 1246 (1907) (current version at 18 U.S.C. §3731 (1982)).Google Scholar

95 Roosevelt to Charles J. Bonaparte, July 23, 1908, T. Roosevelt Letters, supra note 68, no. 4819, at 1142; to James R. Garfield, May 31, 1906, T. Roosevelt Letters, supra note 62, no. 3931; to Henry Lee Higginson, Aug. 12, 1907, id., no. 4400, at 746n.1; Paul H. Giddens, Standard Oil Company (Indiana): Oil Pioneer of the Middle West 99–101 (New York: Appleton-Century-Crofts, 1955); Allan Nevins, Study in Power: John D. Rockefeller, Industrialist and Philanthropist 356–59, 363–65 (New York: Charles Scribner's Sons, 1953). Standard Oil Co. v. United States, 164 F. 376 (7th Cir., 1908), cert. denied, 212 U.S. 579 (1909).Google Scholar

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97 Gregory served Aug. 29, 1914-Mar.4, 1919. James McReynolds had served Mar. 5, 1913-Aug.29, 1914, and A. Mitchell Palmer followed Gregory, serving Mar. 5, 1919-Mar. 5, 1921. McReynolds, like Gregory, owed his appointment to the cabinet to Col. E. M. House. McReynolds had a reputation ac a proponent of vigorous enforcement of the antitrust laws. This reputation, plus the desire to end a political controversy over McReynolds's motives in ordering the postponement of the trial of the son-in-law of a Wilson administration official, led Wilson to nominate him for the U.S. Supreme Court in 1914. David Burner, James C. McReynolds, in Friedman & Israel, supra note 71, at 2023, 2026; Arthur Walworth, Woodrow Wilson 271–72 (3d ed. New York: W. W. Norton & Co., 1978); Blum, supra note 51, at 76–77; Link, Wilson, supra note 51, vol. 2, The New Freedom 116–19 (1956).Google Scholar

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100 Graham was an associate of future attorney general A. Mitchell Palmer and a leader of the progressive faction in Pennsylvania. See 1 The Intimate Papers of Colonel House, ed. Charles Seymour, 129–30 (Boston: Houghton Mifflin Co., 1926). When Palmer became attorney general, Wilson appointed Graham an associate judge of the Court of Claims, from which he retired in 1930. The United States Court of Claims: A History: Part 1, The Judges, 1955–1976, by Marion T. Bennett, at 127 (Washington, D.C.: Judicial Conference of the U.S., Committee on the Bicentennial of Independence and the Constitution, 1976).Google Scholar

101 See notes 165–66 infra and accompanying text. See also Wigmore, John H., The Federal Senate and Federal Judges, 7 III. L. Rev. 443 (1913); Chi. Tribune, Dec. 18, 1912, at I; 45 Chi. Legal News 173, 181, 246 (1913) (bound reprint).Google Scholar

102 On the factions in the Illinois Democratic party see Carter H. Harrison, Stormy Years: The Autobiography of Carter H. Harrison, Five Times Mayor of Chicago (Indianapolis: Bobbs-Merrill Co., 1935). See also Roger Sullivan to Col. E. M. House, Dec. 20, 1913; Justice Dept. memo dictated after conversation with Sen. J. H. Lewis, Apr. 18, 1913, both in Dept. Just. Files, supra note 69.Google Scholar

103 Memo, William Fitts to Att'y Gen. Gregory, July 1, 1915, at 6, Dept. Just. Files, supra note 69.Google Scholar

104 Id. at 5. Alschuler was a Jew and the first Jew appointed to the U.S. Court of Appeals. The Alschuler appointment, a year before Brandeis's, went through the Senate without controversy. The only Jews to have been appointed to the federal bench before Alschuler were Jacob Trieber of the U.S. District Court for the Eastern District of Arkansas (1900) and Julian Mack of the U.S. Commerce Court (1911). Mack served on the Seventh, Sixth, and Second circuits following the abolition of the Commerce Court. On Alschuler's legislative career see Aurora Beacon J., Nov. 9, 1939, at 2; Samuel Alschuler to D. E. Ellis, Dec. 30, 1914, Alschuler Collection, Illinois State Historical Society, Springfield.Google Scholar

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106 State J. (Madison), Apr. 23, 1916, at 1; Milwaukee Sentinel, Apr. 26, 1916, at I; Kewaunee Enterprise, Apr. 28. 1916, at 3; Portage Democrat, Apr. 24, 1916, at 1; memo, William C. Fitts to Gregory, Feb. 1, 1916, Dept. Just. Files, supra note 69. In addition there is useful correspondence documenting the split in the Wisconsin party in the Robert M. La Follette Papers, Library of Congress, Washington, D.C.Google Scholar

107 Fitts memo, supra note 106, at 3–7, 23–24.Google Scholar

108 Id. at 13.Google Scholar

109 Id. at 21.Google Scholar

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111 Fitts memo, supra note 106, at 8–9. See also Robert S. Maxwell, La Follette and the Rise of the Progressives in Wisconsin 77 (n.p.: State Historical Society of Wisconsin, 1956).Google Scholar

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114 See newspaper articles cited in note 106 supra.Google Scholar

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116 Roger Sullivan to Joseph Tumulty, Feb. 28, 1918; Sullivan to W. Wilson, Feb. 17, 1919. In his letter to Woodrow Wilson, Feb. 28, 1919, Tumulty told the president that “[Sullivan] said this is one thing he wants and that his whole heart is set on the appointment [of Lucey].” The letters above are in Wilson Papers, supra note 105.Google Scholar

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118 See letters cited in note 116 supra. In Wilson's letter to Tumulty, Mar. 1, 1919, Wilson Papers, supra note 105, he explained that he could not let Sullivan or politics dictate this appointment because he had found a superior nominee. “Sincerely as I would like to gratify Sullivan I cannot in conscience see my way to doing it.” Page was nominated the same day.Google Scholar

119 Memo, supra note 103.Google Scholar

120 Chi. Tribune, Jan. 4, 1919, at 4; N.Y. Times, Mar. 27, 1919, at 1; Chi. Tribune, Mar. 2, 1919, at 1; The Army Lawyer: A History of the Judge Advocate General's Corps, 1775–1975, at 125–38 (Washington, D.C.: Government Printing Office, 1976).Google Scholar

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126 See letter cited in note 99 supra. The Gregory Papers, supra note 99, contain many letters between Batts and Gregory that demonstrate the closeness of their professional and personal relationship and the degree to which Gregory relied on Batts for legal and political advice.Google Scholar

127 Memo, Thomas Gregory to W. Wilson, Sept. 30, 1918, Wilson Papers, supra note 105; Alpheus Thomas Mason, Brandeis: A Free Man's Life 129. 134–35, 210, ch. 30 passim (New York: Viking Press, 1946). See also on the Brandeis-Anderson association, Letters of Louis D. Brandeis, ed. Melvin I. Urofsky & David W. Levy, 5 vols. (Albany: State University of New York Press, 1971–78). Correspondence between Anderson and Gregory may be found in Gregory Papers, supra note 99.Google Scholar

128 On N.Y. politics see John J. Broesamle, William Gibbs McAdoo: A Passion for Change: 1863–1917, at 71–72, 83–93 (Port Washington, N.Y.: Kennikat Press, 1973); Papers of Woodrow Wilson, supra note 123, vol. 36: January-May 1916, ed. David W. Hirst et al., at 380–81 (1981); Link, supra note 97, at 164–73. Memo, Samuel Graham to T. Gregory, Jan. 28, 1916; Joseph Tumulty to Gregory, Dec. 14, 1915; William McAdoo to Gregory, Feb. 7, 1916; Joseph Day to W. Wilson, Feb. 11, 1916–-all in Dept. Just. Files, supra note 69. Henry Morgenthau to Wilson, July 10, 1916, Wilson Papers, supra note 105; N.Y. Times, Feb. 9, 1916, at 3; id., Apr. 28, 1916, at 4.Google Scholar

129 See note 84 supra and accompanying text.Google Scholar

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132 N.Y. Times, Aug. 16, 1916, at 4; id., Mar. 13, 1918, at 4; Schick, supra note 5, at 5–6,62–63. On Manton's corruption and scandal see Joseph Borkin, The Corrupt Judge: An Inquiry into Bribery and Other High Crimes and Misdemeanors in the Federal Courts 23–93 (New York: Clarkson N. Potter, Inc., 1962).Google Scholar

133 One appointee was Charles Johnson of Maine to the First Circuit, for whom Wilson received recommendations from many senators, congressmen, and party officials. As one said, “[Johnson] always took a deep interest in and supported all legislation favorable to the administration.” William Ingraham to Wilson, Sept. 29, 1917. Wilson sent the letters to Gregory and asked for his opinion. Wilson to Gregory, Sept. 19, 1917. The other was Nathan Bryan of Florida to the Fifth Circuit in 1920. Memo, W. M. Palmer to Woodrow Wilson, Apr. 20, 1920. The letters and memo are in Wilson Papers, supra note 105. Frank Clark to Wilson, Aug. 6, 1919, Dept. Just. Files, supra note 69.Google Scholar

134 Wilson to James McReynolds, Mar. 13, 1913, Wilson Papers, supra note 105. Note that in rewarding a friend the president justifies the selection on the candidate's policy positions. Compare this with Harding and Coolidge, text accompanying notes 194 and 202 infra.Google Scholar

135 Memo, Samuel Graham to Gregory, Nov. 24, 1916, Dept. Just. Files, supra note 69; telegram, Frank Thompson to W. Wilson, Nov. 12, 1916; memo, Gregory to Wilson, n.d.; Wilson to William Stone, Nov. 22, 1916–-telegram and letters in Wilson Papers, supra note 105.Google Scholar

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137 Chase, supra note 6, at 12 (quoting Dean Acheson, Morning and Noon 212 (Boston: Houghton Mifflin Co., 1%5)). Acheson did refuse the appointment.Google Scholar

138 Burke, supra note 40, at 225. Burke states further on: “A number of Roosevelt's nominees were accepted by the senators without enthusiasm and only after political pressure had been applied.” Id. at 238. Burke dates the period of the importance of ideology in courts of appeals appointments as 1935–40. Id. at 245–46. However, in 1935–36 F.D.R. made six appointments to the appeals courts. With insufficient information on one of the six, Burke's account of the others attributes three to senatorial politics, says one enjoyed the support of both his senator and F.D.R.'s patronage chief, Jim Farley, and characterizes only Clifton Mathews, U.S. attorney in Arizona, as an ideological choice.Google Scholar

139 Goldman, supra note 6, at 203–11.Google Scholar

140 The ten were identified from the information in Senate Committee on the Judiciary, supra note 40.Google Scholar

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142 Memo, Asst. Att'y Gen. Dan McGrath to Att'y Gen. Homer Cummings, Apr. 27, 1933; memo for William Stanley, Apr. 27, 1933; Cummings to F. Roosevelt, June 3, 1933; J. Hamilton Lewis & William Dieterich to F. Roosevelt, June 15, 1933; Newton Jenkins to Louis FitzHenry, July 6, 1933–-all in Federal Records Center, St. Louis, Mo. FitzHenry's self-promotion campaign, beginning in 1928, is documented in the voluminous correspondence in the FitzHenry Collection, supra note 58. For a description of FitzHenry's industry and toughness, see Daily Pantagraph (Bloomington, III.), Feb. 18, 1925, at 2; id., Nov. 19, 1935, at 5. His docket was kept clear enough to allow him to be designated by the chief justice to assist the Southern District of N.Y. in clearing its backlog.Google Scholar

143 Burke, supra note 40, at 220–21.Google Scholar

144 N.Y. Times, Mar. 10, 1937, at 1; Chi. Tribune, Mar. 10, 1937, at 13. Dieterich wanted to promote Major to make room on the district court for a retiring U.S. representative, J. Leroy Adair. Major had been described in 1933 by one New Dealer as, “a fairly decent fellow, … not exactly the type of man Roosevelt might be expected to appoint to the Federal bench.” Newton Jenkins to Sec'y of the Interior Harold L. Ickes, July 6, 1933, Fed. Records Center, supra note 142.Google Scholar

145 The attorneys general were Homer Cummings, 1933–39; Frank Murphy, 1939–40; Robert Jackson, 1940–41; Francis Biddle, 1941–45.Google Scholar

Cummings is described by Peter Irons as “a Democratic party wheelhorse … a politician by temperament.” Irons, supra note 62, at 11. Irons portrays him as the leading architect of the court-packing plan that F.D.R. sent to Congress. Id. at 197, 275–76.Google Scholar

146 See notes 137–38 supra and accompanying text.Google Scholar

147 Cummings to Roosevelt, July 13, 1938, FDR Papers, supra note 141.Google Scholar

148 Memo, Sherman Minton to Homer Cummings, Aug. 9, 1937, Fed. Records Center, supra note 142; Indianapolis Star, Dec. 7, 1937, at I; Chi. Tribune, Dec. 9, 1937, at 1; id., Dec. 12, 1937, at I; id., Dec. 13, 1937, at I; Cummings to Roosevelt, Dec. 7, 1937, FDR Papers, supra note 141. For a sample of Treanor's writings see Book Review, 40 Harv. L. Rev. 664 (1927); Book Review, 78 U. Pa. L. Rev. 288 (1929); Burden of Proof of Due Course Holding Under Negotiable Instruments Law, 1 Ind. L.J. 49 (1926); Comment on address by Hon. Henry Hanna, The Common Law in Ireland, in The Future of the Common Law 233 (Cambridge: Harvard University Press, 1937). Treanor was a friend and admirer of Roscoe Pound, who invited him to be one of the speakers at the Conference on the Future of the Common Law, part of Harvard's tercentenary celebration. The Treanor appointment was controversial because it was one of the instances when a president moved an appointment from one state to another; when Illinois Democrats remained deadlocked over two candidates, the attorney general decided to shift the appointment to Indiana. Congress had created a new judgeship, and a deal was finally arranged whereby the New Deal liberals, led by Gov. Henry Homer, would have Lt. Gov. Otto Kerner named to the Seventh Circuit, and the regular party, led by Chicago mayor Edward J. Kelly, would get Mike Igoe named to the district court. Although political considerations were paramount in Kerner's selection, it should be noted that Cummings selected the more liberal candidate for the court of appeals position.Google Scholar

149 Koeniger, A. Cash, The New Deal and the States: Roosevelt Versus the Byrd Organization in Virginia, 68 J. Am. Hist. 876, 886–93 (1982).Google Scholar

150 William O. Douglas to F. Roosevelt, Jan. 3, 1941, FDR Papers, supra note 141 (arranging Frank appointment). Richard Kirkendall, Sherman Minton, in Friedman & Israel, supra note 71, vol. 4, at 2696, 2700. See Irons, supra note 62, for the role of these men in their agencies.Google Scholar

151 Burke, supra note 40, at 263.Google Scholar

152 Kenneth McKeller to F. Roosevelt, Oct. 17, 1938, FDR Papers, supra note 141 (emphasis in original).Google Scholar

153 Id. Martin had written the trial court opinion in Ashwander v. TVA, 297 U.S. 288 (1936).Google Scholar

154 Burke, supra note 40, at 263.Google Scholar

155 Donald F. Anderson, William Howard Taft: A Conservative's Conception of the Presidency (Ithaca, N.Y.: Cornell University Press, 1973); Paolo E. Coletta, The Presidency of William Howard Taft (Lawrence: University Press of Kansas, 1973); J. Anderson, supra note 51; Henry F. Pringle, The Life and Times of William Howard Taft (2 vols. New York: Farrar & Rinehard, 1939); Herbert S. Duffy, William Howard Taft (New York: Minton, Balch & Co., 1930).Google Scholar

156 D. Anderson, supra note 155, at 305.Google Scholar

157 Id. at 168. But note another writer's comment: Yet Taft did not fully accept the judicial myth which permeated so much contemporary conservative political thought. Although he was perfectly able to accept and even expound the priestly role of the judge as a dispenser of sacred doctrine, he was not able to endorse the view that it was the Constitution, not the judge, which spoke through judicial decisions. In 1913 Taft had argued that judges had to adapt law to meet new conditions. “Indeed,” he stated. “it is one of the highest and most useful functions that courts have to perform in making a government of law practical and uniformly just.” The next year he was even more explicit: “Judges are men. Courts are composed of judges and one would be foolish who would deny that courts and judges are affected by the times in which they live.”Google Scholar

Walter F. Murphy, In His Own Image: Mr. Chief Justice Taft and Supreme Court Appointments, 1961 Sup. Ct. Rev. 159, 161 (footnotes omitted).Google Scholar

158 Alpheus Thomas Mason, William Howard Taft: Chief Justice 178 (New York: Simon & Schuster, 1965).Google Scholar

159 D. Anderson, supra note 155, at 168. Taft wrote, “I'll be damned if I put any man on this bench of whose character and ability there is the least doubt.” Id.Google Scholar

160 Murphy, supra note 157, at 162.Google Scholar

161 Mason also quotes Taft as telling an endorser of a candidate, “Tell me what Judge Tucker's age is, what his experience has been and what his politics are.” Mason, supra note 158, at 177. It should be emphasized that these policy concerns were expressed after Taft's term as president, when splits had developed within his party and after Brandeis and Clarke, Wilson's Supreme Court appointees, had in Taft's opinion shown themselves to be result-oriented liberals. Murphy, supra note 157, at 163–64. The intra-party split with Roosevelt was in part triggered by T.R.'s attacks on the judiciary and by such proposals as judicial recall. Thus during most of his four years as president, Taft was not at odds with his party over the policy question of the role of the judiciary. See D. Anderson, supra note lS5, at 229–33; Garraty, supra note 67, at 288–91.Google Scholar

162 George Pepper to Taft, Mar. 23, 1909; George Wickersham to Frederick Lewis, Apr. 10, 1909–-both in Dept. Just. Files, supra note 69; George Wharton Pepper, Philadelphia Lawyer: An Autobiography 89 (Philadelphia: J. B. Lippincott Co., 1944); Memorial Issue to George Wharton Pepper, 34 Pa. B.A.Q. 7–146 (1962).Google Scholar

163 Memo, CBS [Charles B. Sornborger] to Att'y Gen. George Wickersham, Mar. 25, 1909; Wickersham to Taft, Mar. 24, 1909–-both in Dept. Just. Files, supra note 69.Google Scholar

164 George Gray to Taft, Mar. 26, 1909; Taft to Wickersham, Mar. 29, 1909–-both in Dept. Just. Files, supra note 69.Google Scholar

165 The Pam-Taft correspondence is found in the Taft Papers, Library of Congress, Washington, D.C. See particularly Taft to Max Pam, July 19, 1912, and Taft's secretary Charles Hilles to Pam, Dec. 18, 1912. See also sources in note 101 supra.Google Scholar

166 Max Pam to Taft, Dec. 12, 1912, Taft Papers, supra note 165.Google Scholar

167 Taft to George Carpenter, Dec. 19, 1912, Taft Papers, supra note 165.Google Scholar

168 Id. See also Taft to William Mason, Dec. 18, 1912, Taft Papers, supra note 165. “[I hoped] I might justify my own judgment in the selection of your son, and could I have appointed him it would have gratified me … and I should like to have delighted your father's heart. But these matters are of rigid conscience and I could not reach the conclusion … to send in your boy's name.” The Democrats managed to block confirmation of Carpenter, wanting to save the appointment for President-Elect Wilson. Carpenter remained on the district court, and Taft later sought to have him promoted, recommending him to Coolidge in 1924. See text at note 198 infra.Google Scholar

169 D. Anderson, supra note 155, at 169 (footnotes omitted).Google Scholar

170 George Wickersham to Franklin MacVeagh, Sec'y of the Treasury, Mar. 30, 191I, Dept. Just. Files, supra note 69. On Lodge's position in the 1912 election see Garraty, supra note 67, at 292–93.Google Scholar

171 Asa French to Wickersham, Apr. 4, 1911; Wickersham to French, Apr. 5, 1911; Guy Muschie to Wickersham, May 4, 1911; C. C. Burlingham to Wickersham, Mar. 17, 1911 (endorsing Dodge); Wickersham to Taft, Apr. 20, 1911–-all in Dept. Just. Files, supra note 69.Google Scholar

172 Wickersham to Samuel Powers, May 25, 1911; Powers to Wickersham, May 23, 1911. Asa French, U.S. attorney in Boston, stated that “Dodge is unquestionably the stronger man of the two.” French to Wickersham, May 21, 1911. The “blue slips” recommending Schofield are in the files. All items are in Dept. Just. Files, supra note 69.Google Scholar

173 Sen. W. M. Crane to Taft, July 3, 1912 (sending letter from him and Lodge requesting Dodge's appointment); Charles Hilles to Wickersham, July 10, 1912 (forwarding letter from senators to Taft and conveying Taft's desire to send Dodge's name to Senate as soon as possible)–-all in Dept. Just. Files, supra note 69.Google Scholar

174 Mason, supra note 158, at 188–89. Mason credits Taft with helping to convince Hoover to appoint Mitchell. See also Murphy, Walter F., Chief Justice Taft and the Lower Court Bureaucracy: A Study in Judicial Administration, 24 J. Pol. 453, 470–73 (1962). Mitchell's role in selecting lower court judges has been emphasized in Justin J. Green & John R. Schmidhauser, President Herbert Hoover and the Federal Judiciary: A Three Dimensional Assessment of the Uses of Nomination and Appointing Authority (unpublished paper, delivered at Seminar on the Presidency of Herbert Hoover, West Branch, Iowa, Aug. 7–9, 1974), Hoover Papers, Hoover Presidential Library, West Branch, Iowa.Google Scholar

175 Mason, supra note 158, at 189.Google Scholar

176 72 Cong Rec. 787 (1929) (remarks of Sen. La Follette quoting radio address by Mitchell).Google Scholar

177 Id.Google Scholar

178 Id.Google Scholar

179 Hamilton, David E., Herbert Hoover and the Great Drought of 1930, 68 J. Am. Hist. 850, 853 (1982). See also Hawley, Ellis W., Hoover, Herbert, the Commerce Secretariat, and the Vision of an “Associative State,” 1921–1928, 61 J. Am. Hist. 116 (1974); David Burner, Herbert Hoover: A Public Life (New York: Alfred A. Knopf, 1978); Karl, Barry D., Presidential Planning and Social Science Research: Mr. Hoover's Experts, 3 Persps. Am. Hist. 347 (1969); Joan Hoff Wilson, Herbert Hoover: Forgotten Progressive (Boston: Little, Brown & Co., 1975).Google Scholar

180 Mitchell, William D., Appointment of Federal Judges, 17 A.B.A. J. 569, 572 (1931).Google Scholar

181 Atlanta Const., Dec. 12, 1930, at I; memo for White House file regarding letter from J. T. Rose, Dec. 16, 1930; memo for White House file regarding letter from Henry Davis, Dec. 12, 1930 (“[Davis] says might appear unusual for Rep. organization favor advancement Democrat to position responsibility, but abilities, private and public record of Judge Sibley regarded as sufficient reason for unqualified endorsement of him”). Both memos are in Hoover Papers, supra note 174. However, Alabama and Florida Republicans were disgruntled. See Green & Schmidhauser, supra note 174.Google Scholar

182 Memo for White House file regarding phone conversation with Gov. Colquitt, n.d.; Orville Bullington to J. F. Lucey, June 28, 1930; Lucey to Walter Newton, July 28, 1930; R. B. Creager to Hoover, June 23, 1930 (Creager was Republican National Committeeman from Texas)–-all in Hoover Papers, supra note 174.Google Scholar

183 Ray Wilbur to Mitchell, Dec. 21, 1929, forwarding letter Paul Shoup to Wilbur, Dec. 13, 1929, which was forwarding letter J. H. Tallichet to Paul Shoup, Nov. 20, 1929, Hoover Papers, supra note 174. Tallichet's railroad had been enjoined by Hutcheson from interfering with the attempts of the Railway Brotherhood to organize company workers. Hous. Chron., Dec. 20, 1930, at 1.Google Scholar

184 Walter Newton to Capt. J. F. Lucey, July 11, 1930, Hoover Papers, supra note 174.Google Scholar

185 Tallichet letter, supra note 183.Google Scholar

186 Watson suggested a list of 15 names to the attorney general, with Sparks first on the list. James Watson to Mitchell, July 26, 1929, Fed. Records Center, supra note 142; Mitchell to Hoover, Oct. 18, 1929, Hoover Papers, supra note 174. Stephenson v. State, 205 Ind. 141 (1933). See also John Lewis Niblack, The Life and Times of a Hoosier Judge 174–76, 187–219 (1973); Irving Leibowitz, My Indiana 189, 194 (Englewood Cliffs, N.J.: Prentice-Hall, 1964); Kenneth T. Jackson, The Ku Klux Klan in the City: 1915–1930, at ch. 10 (New York: Oxford University Press, 1967).Google Scholar

187 Walter Newton to Charles Sisson, June 28, 1930 (informing assistant attorney general that Strawn heard rumor of George Page's retirement from Seventh Circuit and urging Wilkerson's promotion); file memo, Walter Newton, Nov. 3, 1931. The labor pressure on senators can be seen in Newton's file memos of Nov. 17, 1931, and Apr. 16, 1932 (“Sen. Schall called by phone, saying that on account of the Labor boys laying down on him he will have to vote against Wi1kerson”)–-all in Hoover Papers, supra note 174. See The Nomination of James H. Wilkerson to Be United States Circuit Judge, Seventh Circuit: Hearings Before a Subcommittee of the Senate Committee on the Judiciary, 72d Cong., 1 st Sess. (1932). On Wilkerson and injunctions see Felix Frankfurter & Nathan Greene, The Labor Injunction 103, 253–63 (New York: Macmillan Co., 1930).Google Scholar

188 Burke, supra note 40, at 263–64, 218–19, 252.Google Scholar

189 Harris, supra note 5, at 115–16.Google Scholar

190 Daugherty served as attorney general from 1921 through March 1924. He was an Ohio Republican politician, a friend of Harding and his campaign manager. He is, of course, best known for being tarnished by the Teapot Dome scandal. He was forced to resign as attorney general, though not convicted at trial for his participation in the scandal. See James N. Giglio, H. M. Daugherty and the Politics of Expediency (Kent, Ohio: Kent State University Press, 1978).Google Scholar

191 Senators W. Dillinghann & C. Page, congressmen F. Greene & P. Dale to Warren Harding, Apr. 16, 1921; Samuel Kornig to Charles Hilles, July 25, 1921; Sen. William Colder to Hilles, Aug. 1, 1921; Harry Daugherty to Hilles, Aug. 17, 1921; Hilles to Daugherty, Aug. 8, 1921–-all in Dept. Just. Files, supra note 69. N.Y. Times, June 25, 1921, at 5.Google Scholar

192 See notes 57–58 supra and accompanying text.Google Scholar

193 Charles F. Amidon to Daugherty, Aug. 12, 1921; Daugherty to Amidon, Aug. 22, 1921–-both in Dept. Just. Files, supra note 69. Den. Post, Aug. 26, 1921, at 14; id. Nov. 3, 1921, at 1.Google Scholar

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195 Text accompanying note 189 supra; Murray, supra note 194, at 125–28; Trani & Wilson, supra note 194, at 37–38.Google Scholar

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197 Chase, supra note 6, at 12 (quoting a letter from Hoover to Chase).Google Scholar

198 Memo to tile, Harlan F. Stone, Apr. 13, 1924, Dept. Just. Files, supra note 69.Google Scholar

199 Ewing Emison to C. B. Slemp, Mar. 19, 1924; James Watson to C. Coolidge, Mar. 22, 1924; memo for White House file reporting conversation with James Watson, Dec. 18, 1924–-all in Coolidge Papers, Library of Congress, Washington, D.C.Google Scholar

200 John Sargent to C. Coolidge, Apr. 6, 1927, Coolidge Papers, supra note 199.Google Scholar

201 Burke, supra note 40, at 216–17; John Sargent to C. Coolidge, May 18, 1928, Coolidge Papers, supra note 199.Google Scholar

202 Burke, supra note 40, at 255–56; Donald R. McCoy, Calvin Coolidge: The Quiet President 120–21, 157 (New York: Macmillan Co., 1967); N.Y. Times, Jan. 20, 1929, at 3.Google Scholar

203 Mason, supra note 158, at 181–84. See also Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law (Hamden, Conn.: Shoestring Press, Archon Books, 1968).Google Scholar

204 Memo, Rush Holland to Harlan Stone, Dec. 13, 1924, Dept. Just. Files, supra note 69. Notice the absence of any evaluation of policy, unlike the Wilson or Roosevelt administration memos.Google Scholar

205 Memo, Holland to Stone, Nov. 19, 1924, Dept. Just. Files, supra note 69; Mason, supra note 158, at 182.Google Scholar

206 Mason, supra note 158, at 181–82; memo, Stone to file regarding conference with W. H. Taft, Apr. 10, 1924; memo, Stone to file regarding conversation with Julian Mack, Apr. 13, 1924–-all in Dept. Just. Files, supra note 69.Google Scholar

207 Memo, Holland to Stone, May 3, 1924; id. May 21, 1924; id., Nov. 19, 1924–-all in Dept. Just. Files, supra note 69.Google Scholar

208 Judge Robert E. Lewis to Holland, Mar. 16, 1925; memo, Holland to acting attorney general, Mar. 16, 1925–-both in Dept. Just. Files, supra note 69. Selden Spencer to Coolidge, Mar. 11, 1925; Cleveland Newton to Coolidge, Mar. 16, 1925–-both in Coolidge Papers, supra note 199.Google Scholar

209 Quoted in Mason, supra note 158, at 184. Mason states: “The doors Taft had sought to close against senatorial dictation now swung wide open.” Id.Google Scholar

210 Id. at 187–88; Murphy, supra note 174, at 468–69; N.Y. Times, May 20, 1927, at 7; id., May 21, 1927, at 19.Google Scholar

211 Rogers, supra note 44.Google Scholar

212 See Chase, supra note 6.Google Scholar

213 See text accompanying notes 209–10 supra.Google Scholar