FDR gets a Supreme Court appointment in 1933

POD: leaving the world no poorer, US Supreme Court Justice James Clark McReynolds dies in a simple slip-and-fall accident. It's the summer of 1933, and Franklin Roosevelt has been president for less than six months.

Now what?


(No, I'm not being unpleasant. McReynolds was arguably the nastiest, most unpleasant man to ever serve on the US Supreme Court. He was anti-Semitic and racist even by the low standards of the 1920s. He refused to speak to, or have his picture taken with, either of the two Jewish justices, and when a black lawyer appeared before the Court he reversed his chair and sat with his back to him through the entire Court hearing. More generally, he was just a horrible human being.)


Anyway. OTL, FDR got to appoint a whopping nine justices; at the time of his death, 8 of 9 seats on the court were filled by his nominees. But he didn't get a single one in his first four years. No seats came open until his second term, when van Devanter retired in 1937, allowing him to appoint Hugo Black. So, WI he got one early?

Presumably he appoints a good New Dealer. But probably not Hugo Black, who is still a fairly junior senator and not yet well known. OTL he also considered Sherman Minton for the seat -- but, again, four years earlier Minton is probably too young and too much of an unknown quantity. There's Felix Frankfurter... but he's still quite controversial from the still-fresh Sacco and Vanzetti trial, and also this would mean a third Jewish justice on the court (after Brandeis and Cardozo). It seems unlikely. So who, then?


One interesting possibility: Irving Lehman, brother of the not-yet Senator Herbert Lehman. That's the Herbert Lehman who succeeded FDR as governor, having been elected as Lt. Gov in 1928 and 1930. Lehman as in Lehman Brothers, yes. Their father was one of the founders.

Irving was elected to the New York Appeals Court in 1923 on a joint Democratic and Republican ticket. He went on to become Chief Justice in 1939 by unanimous nomination, and died in 1945. So, this is a guy who is friendly terms with Wall Street and Finance, but also friendly terms with the NY State Democratic Party and likely a solid New Dealer. The big question mark with Lehman is that he'd be the third Jewish member of the Court as well (counting Cardozo as Jewish, which everyone did except Cardozo). People were already grumbling about "too many Jews" on the Court after Cardozo's appointment, so that could sink Lehman. But if not him, then who?


Anyway: whoever FDR appoints is very likely to be a reliable liberal and a New Dealer. So the conservative-liberal split on the Court in FDR's first term is now 6-3 instead of 7-2. Are any of the conservative judges swayable on the major New Deal cases, if our unknown *Justice is a good convincer? And if not, what happens with the court pack bill? FDR now things he needs four judges, not six. Does that make any difference?


Thoughts?


Doug M.
 
POD: leaving the world no poorer, US Supreme Court Justice James Clark McReynolds dies in a simple slip-and-fall accident. It's the summer of 1933, and Franklin Roosevelt has been president for less than six months.

Now what?


(No, I'm not being unpleasant. McReynolds was arguably the nastiest, most unpleasant man to ever serve on the US Supreme Court. He was anti-Semitic and racist even by the low standards of the 1920s. He refused to speak to, or have his picture taken with, either of the two Jewish justices, and when a black lawyer appeared before the Court he reversed his chair and sat with his back to him through the entire Court hearing. More generally, he was just a horrible human being.)


Anyway. OTL, FDR got to appoint a whopping nine justices; at the time of his death, 8 of 9 seats on the court were filled by his nominees. But he didn't get a single one in his first four years. No seats came open until his second term, when van Devanter retired in 1937, allowing him to appoint Hugo Black. So, WI he got one early?

Presumably he appoints a good New Dealer. But probably not Hugo Black, who is still a fairly junior senator and not yet well known. OTL he also considered Sherman Minton for the seat -- but, again, four years earlier Minton is probably too young and too much of an unknown quantity. There's Felix Frankfurter... but he's still quite controversial from the still-fresh Sacco and Vanzetti trial, and also this would mean a third Jewish justice on the court (after Brandeis and Cardozo). It seems unlikely. So who, then?


One interesting possibility: Irving Lehman, brother of the not-yet Senator Herbert Lehman. That's the Herbert Lehman who succeeded FDR as governor, having been elected as Lt. Gov in 1928 and 1930. Lehman as in Lehman Brothers, yes. Their father was one of the founders.

Irving was elected to the New York Appeals Court in 1923 on a joint Democratic and Republican ticket. He went on to become Chief Justice in 1939 by unanimous nomination, and died in 1945. So, this is a guy who is friendly terms with Wall Street and Finance, but also friendly terms with the NY State Democratic Party and likely a solid New Dealer. The big question mark with Lehman is that he'd be the third Jewish member of the Court as well (counting Cardozo as Jewish, which everyone did except Cardozo). People were already grumbling about "too many Jews" on the Court after Cardozo's appointment, so that could sink Lehman. But if not him, then who?


Anyway: whoever FDR appoints is very likely to be a reliable liberal and a New Dealer. So the conservative-liberal split on the Court in FDR's first term is now 6-3 instead of 7-2. Are any of the conservative judges swayable on the major New Deal cases, if our unknown *Justice is a good convincer? And if not, what happens with the court pack bill? FDR now things he needs four judges, not six. Does that make any difference?


Thoughts?


Doug M.

How about Phil LaFollette? He had recently been defeated for a second term as governor in the Roosevelt-landslide, was the brother of a popular Senator (and important Roosevelt ally), and Roosevelt had offered him a cabinet position in OTL, which Phil only narrowly turned down.

His youth would play against him; he was only in his mid-30s. However, he would certainly be a supporter of the New Deal, and had a reputation as someone who possessed a keen legal mind (in OTL, before he decided on a career in politics, he had been offered the main chair of the UW law school ... while still in his 20s)

It would actually be interesting to see Phil on the Supreme Court. I'm not sure how long he'd stay there; as said, he had a strong love of the law, but was a politician at heart. I could see him resign after a few years in order to run for the Senate (which is the position he always truly coveted ... besides the Presidency, of course), but having another strong liberal justice on the court during this period would be interesting..
 
This makes the SCOTUS more favorable to the New Deal. One of the four horsemen is gone. This makes four pro New Deal justices. With Roberts the swing justice that means more 5 - 4 rulings in favor of the New Deal. The big defeat, the overturning of the NRA, was however a 9-0 ruling, so FDR is still unhappy with the court and may still try to pack it in 1937.
 

bguy

Donor
Anyway: whoever FDR appoints is very likely to be a reliable liberal and a New Dealer. So the conservative-liberal split on the Court in FDR's first term is now 6-3 instead of 7-2. Are any of the conservative judges swayable on the major New Deal cases, if our unknown *Justice is a good convincer? And if not, what happens with the court pack bill? FDR now things he needs four judges, not six. Does that make any difference?

I think FDR would probably appoint Senator Majority Leader Joseph Robinson of Arkansas. Robinson is a progressive who has already done good work for FDR in the Senate by the summer of '33, and since Robinson is a Southener it would be a good way for FDR to placate the South. (Especially since Robinson would be replacing a Southern justice.) Robinson also really wanted to be on the Supreme Court, so it could be dangerous for FDR not to pick him.

Of course since Robinson goes on to die in '37, the impact of such an appointment is likely to be minimal. (Robinson might live a little longer without the stress of pushing the court packing bill, but if his health was that fragile it's doubtful he will live through FDR's second term.) As for his time on the benchm Robinson was apparently somewhat autocratic in nature, so I doubt he would be all that good at swaying the more conservative justices.
 
How about Phil LaFollette? [...]

His youth would play against him; he was only in his mid-30s. However, he would certainly be a supporter of the New Deal, and had a reputation as someone who possessed a keen legal mind (in OTL, before he decided on a career in politics, he had been offered the main chair of the UW law school ... while still in his 20s)

There were young (<40 yo) Supreme Court judges back in the 19th century, but I don't think there were any in the post-Civil War era. In fact, if you look at the Wilson, Coolidge and Hoover appointees, they were all guys in their 50s and early 60s.

The Supreme Court saw noticeably more "churn" back in those days; Justices were appointed at an older age and -- with a few exceptions like Oliver Wendell Holmes -- were a bit less likely to cling to office until death claimed them. So you typically saw a spot come open every couple of years. (That was one reason for FDR's frustration with the Court: he believed that some of the conservative judges were staying in office just to spite him and/or to sink the New Deal. Which was at least partially true.)

But anyway, point is, appointing a Justice that young would be a major break with tradition and a really big deal. Okay, I could imagine FDR doing it /because/ it was a break with tradition. But it's a bit of a stretch, I think.


Doug M.
 
There were young (<40 yo) Supreme Court judges back in the 19th century, but I don't think there were any in the post-Civil War era. In fact, if you look at the Wilson, Coolidge and Hoover appointees, they were all guys in their 50s and early 60s.

The Supreme Court saw noticeably more "churn" back in those days; Justices were appointed at an older age and -- with a few exceptions like Oliver Wendell Holmes -- were a bit less likely to cling to office until death claimed them. So you typically saw a spot come open every couple of years. (That was one reason for FDR's frustration with the Court: he believed that some of the conservative judges were staying in office just to spite him and/or to sink the New Deal. Which was at least partially true.)

But anyway, point is, appointing a Justice that young would be a major break with tradition and a really big deal. Okay, I could imagine FDR doing it /because/ it was a break with tradition. But it's a bit of a stretch, I think.


Doug M.

Oh, I agree; although FDR did often obsess with how to deal with the "Phil problem". In OTL, had Phil een reelected as goernor in 38, FDR planned to offer Bob Jr a position in the cabinet, with the idea that PFL would take his brother's Senate seat, and, in time, FDR would offer Bob the position of VP. But then again, FDR certainly wasn't one to shy away from politicla machinations (although the thought of an FDR/LaFollette ticket in 44 is interesting in and of itself).

Honestly, the most likely candidate for this Supreme Court seat really seems to be the other one mentioned up-thread.
 
This makes the SCOTUS more favorable to the New Deal. One of the four horsemen is gone. This makes four pro New Deal justices. With Roberts the swing justice that means more 5 - 4 rulings in favor of the New Deal. The big defeat, the overturning of the NRA, was however a 9-0 ruling, so FDR is still unhappy with the court and may still try to pack it in 1937.

OTL you had the "Four Horsemen" opposed by the "Three Musketeers", with Roberts and Hughes as two swing votes but voting more consistently conservative after 1934. However, of the three, Stone and Cardozo were both occasionally shaky, so there were a number of 7-2 decisions against New Deal legislation. That's why FDR thought he needed up to six (!) new justices on the Court.

Most of the key decisions were not 5-4, so they still end up going against him -- and yes, the NRA is still probably 9-0; even Brandeis joined the majority on that one. So I think FDR would still end up wanting to pack the Court -- but maybe with just four justices, not six.


Doug M.
 
I think FDR would probably appoint Senator Majority Leader Joseph Robinson of Arkansas. Robinson is a progressive who has already done good work for FDR in the Senate by the summer of '33, and since Robinson is a Southener it would be a good way for FDR to placate the South. (Especially since Robinson would be replacing a Southern justice.) Robinson also really wanted to be on the Supreme Court, so it could be dangerous for FDR not to pick him.

Oh, good one! I did not know that Robinson wanted to be on the Court, though. Do you have a cite for that?


Doug M.
 

bguy

Donor
Oh, good one! I did not know that Robinson wanted to be on the Court, though. Do you have a cite for that?

Conrad Black's, "Franklin Delano Roosevelt: Champion of Freedom", page 414.

"Roosevelt had promised Joe Robinson that he could have the next vacant seat on the Supreme Court, which was the summit of Robinson's ambition and the prospect that had retained his absolute loyalty to the President's program despite his southener's conservative reservations about many aspects of it."

There's also Jeff Shesol's "Supreme Power: Franklin Roosevelt vs the Supreme Court". Page 309 talks about how much Robinson wanted to be on the Supreme Court and states that FDR promised him the next appointment during The Hundred Days in exchange for Robinson's support in passing the New Deal legislation.

Shesol's book goes on to say that much of FDR's inner circle did not want Robinson on the court (Harold Ickes thought Robinson was a closet reactionary and Harlan Stone was dead set against the appointment), that various liberal groups lobbied against the possibility of Robinson's appointment in 1937, and that FDR was very reluctant to honor his pledge to Robinson (even going so far as to ask his AG if Robinson was constitutionally ineligible for the appointment due to having voted to increase the pay of Supreme Court justices).

That said, I think FDR would ultimately bite the bullet and appoint Robinson. I know promises were pretty elastic things to him, but I still can't see him wanting to go to war with the Senate Majority Leader right at the start of his administration. (Especially since FDR has no way of knowing that this is the only Supreme Court pick he will get to make in his entire first term.)
 
The NRA loss is inconsequential to the court packing. FDR was silently kind of glad that NRA was voided: it allowed him to give it a quiet death and move on to other stuff. The thing that drove the desire for court packing was more the loss of other measures like the AAA. Save those and you can avoid the Judicial Procedures Reform Bill, and all the knock on effects that has.
 
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