¹ See, for example, ProfessorLaski's, Harold “Technique of Judicial Appointment,” an article reprinted in Studies in Law and Politics, pp. 163–180Google Scholar. Much the same point of view is adopted by ProfessorShartel, B. in 28 Mich. Law Rev., 845–529, 723–738, 870–909Google Scholar. Casual, and not at all complimentary, observations on the Senate's treatment of Supreme Court nominations are frequently made by other writers. For example, on page 312 of Simeon E. Baldwin's American Judiciary it is asserted that “a large number of men have thus [failure of confirmation] from time to time been deprived of a seat on the Supreme Court of the United States who would have added to its luster.” For a typically unsympathetic view of the criteria employed by the Senate in recent cases, the reader may refer to page 162 of Professor Young's American Government and Its Work.

² Mr. Charles Warren lists 22 nominations to the Court which were not confirmed during the period 1789 to 1925 (Supreme Court in U. S. History, rev. ed., Vol. 2, pp. 756–763)Google Scholar. Ogg and Ray list 9 formal rejections by the Senate (Introduction to American Government, 4th ed., p. 516Google Scholar). As a matter of fact, failure of confirmation may be attributed to senatorial opposition in all but two of Mr. Warren's cases, i.e., the nomination of William Patterson in 1793 and that of George H. Williams in 1873. Subtracting these and adding the case of Judge Parker, we have a total of 21 virtual rejections.

³ The figures include nominations to judicial positions in the territories of Alaska, the Philippines, and Hawaii, and the District of Columbia. They were compiled under the writer's direction by Messrs. Landaas and Torbenson, of the University of Washington.

⁴ Professor Kenneth C. Sears condemns “usurpation” by senators of the power to nominate, instancing the nomination of Albert Watson to the district bench in Pennsylvania. 25 Ill. Law Rev., 54 ff.

⁵ A conspicuous example is the case of Albert Watson, whose nomination was not confirmed despite the active support of Senator Reed of Pennsylvania.

⁶ The conclusion that senatorial influence upon the making of nominations is not to be taken into account in assessing the significance of confirmation argues that the latter power is of little or no moment as applied to inferior judicial officers on the strength of the figures cited above. On the other hand, the same argument leads us to suspect that the percentage of rejections in this class is likely to increase.

⁷ The nominations of Marshall, Taney, and Mathews—to name only a few of the successful candidates—provoked great controversy, and it is not difficult to document these controversies with the arguments pro and con of their contemporaries. The point is that these arguments were not directed solely to the agency charged with the business of confirmation.

⁸ The new order was ushered in by the passage of the La Follette resolution of June 18 which amended par. 2 of Senate rule 38. The resolution provides for the transaction of all business in open session unless it is otherwise provided, in the case of a specific nomination or treaty, by majority vote. And even when a closed session is so ordered, any senator is permitted to divulge his vote. See Cong. Rec., Vol. 72, p. 4054Google Scholar. Closely related to this departure is the custom of holding public hearings on judicial nominations. This was inaugurated in 1916, when the name of Louis D. Brandeis was sent to the Senate.

⁹ The only case in which the hearing was conducted by the entire judiciary committee was that of Wallace McCammant. A favorable report had been recommitted by the Senate. The only case in which a judicial nomination has escaped committee reference entirely was that of Mr. Justice White, whose elevation to the chief justiceship was directly confirmed. The following hearings will be cited hereafter by reference to the surname of the nominee only:

James H. Wilkerson to be circuit judge 7th circuit 72nd Cong. 1st session

Louis D. Brandeis to be assoc. justice Supreme Court 64th Cong. 1st session

Albert Watson to be dist. judge (Penn.) 71st Cong. 1st session

Gunnar Norbye to be dist. judge (Minn.) 71st Cong. 2nd session

W. J. Tillson to be dist. judge (middle dist., Ga.) 69th Cong. 2nd session

Kenneth Mackintosh to be circuit judge 9th circuit 72nd Cong. 1st session

Wallace McCammant to be circuit judge 9th circuit 69th Cong. 1st session

J. J. Parker to be assoc. justice Supreme Court 71st Cong. 1st session

¹⁰ Hearings, testimony of M. J. Martin.

¹¹ Charges of this and a similar nature, such as that the candidate lacks “sufficient stamina, moral fibre, and backbone to make an independent judge,” are often conjoined with assertions that he is “arbitrary and intolerant.” For example, in the case of Judge Wilkerson it is the latter characteristic that was most emphasized, but both the Vigilance Forum and the Clean Government League accused him of being “weak and unfair.” Wilkerson Hearings, p. 15.

¹² Norbye Hearings, pp. 51–57.

¹³ Hearings, testimony of Mr. Johnson, pp. 237–249.

¹⁴ Hearings, p. 249, testimony of Arnold B. Larson, at the time a reporter for the United Press.

¹⁵ Hearings, pp. 1308–1316, testimony of Edward R. Warren. See also Senator Chilton's comment upon the charge. Sen. Rep. No. 2, pp. 35–37 (64th Cong., 1st sess.).

¹⁶ Brandeis Hearings, p. 8.

¹⁷ Code of Ethics, American Bar Association. Of course, this is conditioned upon non-disclosure of the relationship to all parties concerned. In neither of the cases cited did the evidence indicate that Mr. Brandeis had concealed his status. Nevertheless, this is the general principle relied upon.

¹⁸ See the different constructions placed upon these facts by the majority and minority committees. Senate Report No. 2, 64th Cong., 1st sess., Part 1, pp. 18–26; Part 2, pp. 19–20.

¹⁹ Senate Doc. 719, 61st Cong., 3rd sess.

²⁰ Both judges were sponsored by Senator Glenn. The charge in question was presented by Senator Blaine to Senator Glenn while the latter was giving testimony before the Senate committee. Hearings, p. 19.11

²¹ Under the Oregon statutes, two methods of getting a delegate's name on the ballot were possible. That employed by McCammant did not place him under a legal duty to vote for the state-wide popular choice for president. On the other hand, McCammant had appealed to the voters in language construed by his senatorial opponent as a promise that he would vote for the popular choice.

²² Cong. Rec., Vol. 72, p. 3378 (Feb. 11, 1930)Google Scholar.

²³ Cong. Rec., Vol. 72, p. 8040 (April 30, 1930)Google Scholar.

²⁴ In no case does the writer purport to evaluate the evidence cited by omitting the “other side.” In this particular case, however, it is interesting to note that a special committee of the Chicago Bar Association refuted the above statements seriatim. The committee concluded: “We have discovered no facts indicating that in the initiation and conduct of the St. Paul receivership Judge Wilkerson was actuated by motives not in keeping with the highest standards of judicial conduct.” Hearings, pp. 226–228.

²⁵ Wilkerson Hearings, pp. 271 ff.

²⁶ For example, the Chicago St. Railway receivership. Ibid., p. 278.

²⁷ Under the statutes of Minnesota, the judge may appoint the foreman of a grand jury, or he may leave the selection to the jury itself. Not only the character of the appointment, but the exercise of discretion at all in the premises, was objected to. Norbye Hearings, p. 55.

²⁸ Watson Hearings, p. 33.

²⁹ Tillson Hearings, p. 3. The category of criminal charges can hardly be made exclusive because the offense is not specified independently of the witnesses relied upon to establish it, nor are the latter held to any accepted rules of relevancy. This will be commented on at more length presently.

³⁰ Hearings, pp. 75–78, reproducing an article appearing in the Yale Law Review for December, 1922.

³¹ By letter to SenatorBorah, . Hearings, p. 75Google Scholar.

³² The reliability of such polls of professional opinion, of course, depends upon a number of factors. The bitter controversy over the Norbye nomination was preceded by a canvass of the Minnesota bar on the name of Senator Schall's choice, Mr. Ernest Michel. It was contended that this poll was instigated by Attorney-General Mitchell and accompanied by the latter's severe condemnation of the candidate; and also that the form of the questionnaire was prejudicial. Of 1,500 ballots, the above candidate received 293.

³³ Cong. Rec., Vol. 72, p. 3500 (Feb. 12, 1930)Google Scholar.

³⁴ The most important of the cases relied upon by Judge Wilkerson's opponents was what has become popularly known as the Daugherty injunction case, involving proceedings instituted by the Attorney-General in 1922 to break the great railway strike of that year. These are reported in 283 Fed. 479, 286. Fed. 228, 290 Fed. 798. See Wilkerson Hearings, p. 43 ff.

³⁵ The decision of the Supreme Court in Michaelson v. U. S., 262 U. S. 42, was cited to sustain this charge of illegality.

³⁶ Robinson v. Railway Labor Board, 268 U. S. 619, decided that, in the absence of specific statutory provisions to the contrary, process of a federal court is limited to the district for which it is organized and established.

³⁷ Wilkerson Hearings, 78.

³⁸ Mackintosh Hearings.

³⁹ Borah, Senator, Cong. Rec., Vol. 72, p. 7930 (April 29, 1930)Google Scholar.

⁴⁰ SenatorConnally, Tom, Cong. Rec., Vol. 72, p. 3574 (February 12, 1930)Google Scholar.

⁴¹ For example, veto of the teachers' bill providing for equal wages for women and men teachers; the message to the N. Y. legislature against the income tax; the veto of the Coney Island nickel fare legislation, the two-cent-a-mile bill, and the full crew bill.

⁴² Cong. Rec., Vol., 72, p. 8182 (May 2, 1930)Google Scholar.

⁴³ Mackintosh Hearings.

⁴⁴ Cong. Rec., Vol. 72, p. 3435 (February 12, 1930)Google Scholar.

⁴⁵ Cong. Rec., Vol. 72, p. 3249 (February 11, 1930)Google Scholar.

⁴⁶ Cong. Rec., Vol. 72, p. 3588 (February 13, 1930)Google Scholar.

⁴⁷ Cong. Rec., Vol. 75, p. 3581 (February 13, 1930)Google Scholar.

⁴⁸ The very personal character of Schall's objections was frankly admitted by the senator: “I personally object to his confirmation, which would be obnoxious to me and place in the saddle in my state my belittlers and slanderers and defamers of my character. Mr. Norbye is, and has been, my personal political enemy… I ask that the time-honored custom of the Senate be enforced, and that your committee and the full judiciary committee reject his confirmation.” Norbye Hearings, p. 85.

⁴⁹ Norbye Hearings, p. 58.

⁵⁰ Brandeis detractors emphasized the fact that the shippers were weaker, as respects legal talent, than the carriers, and that accordingly Brandeis was really commissioned to help them. See Cummins, , Minority Report, p. 301Google Scholar.

⁵¹ Brandeis concluded that “the net operating revenues of the railroads are smaller than is consistent with their assured prosperity and the welfare of the community.”

⁵² In a letter to George Dysart, the local prosecutor.

⁵³ Oddly enough, Mackintosh's “tight-rope walking” in the Wickersham report was also offered as proof that he lacked judicial poise!

⁵⁴ The Brandeis hearings were enlivened by clashes between Senators Walsh and Clark on the admissibility of evidence—that is, on the rules to be followed—but without seriously affecting the liberty of witnesses to say, or of senators to hear, anything that came into their minds.

⁵⁵ A legislative investigation always involves the use of compulsory process to compel the attendance of witnesses and production of papers. See M. E. Dimock, Congressional Investigating Committees. In the Brandeis hearing, the presence of several witnesses was secured by subpoena, and they were regularly sworn. Subsequent practice in the above particulars shows no uniformity.

⁵⁸ It may be observed that none of the judges against whom impeachment proceedings have been brought seems to have encountered any difficulty in having his name confirmed by the Senate. The present investigation of judicial administration in Illinois is reported to involve Judge Woodward. His nomination was not challenged in the Senate.

⁵⁷ The following illustrate the sort of “interests” represented in the hearings: American Federation of Labor, Association for the Advancement of Colored People, Veterans of Foreign Wars. A judicial nomination provokes the same sort of reaction as the introduction of a public bill.

⁵⁸ This was Marshall's great contribution to the dialectic of American public law. The logical conception with which he worked in determining institutional boundaries was that of power: given the power to legislate on a given subject, questions of the manner of its exercise (“reasonableness”) are for the legislature. See Boudin's reference to this in his discussion of Mr. Justice Field's dissenting opinion in Munn v. Illinois, Government by Judiciary, Vol. II. Of course this use of absolute concepts can be looked at now as the “basic myth of the Constitution” (C. L. B. Lowndes, in 47 Harvard Law Review 631); but it had a certain effectiveness before it was generally recognized as a “myth.”

⁵⁹ Mr. Justice Cardozo frankly admits the identity of the legislative and judicial functions. It is true that he applies this only to the “gaps” in the law, but this is just what certain general constitutional provisions represent to both the legislature and the courts (Nature of the Judicial Process).