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Because this is Kavanaugh week, I thought that it would be nice, here at Willett’s, to have a post, every day, about rejected Supreme Court nominees – a greatest hits of the losers, as it were.

The question is: where to start?

The rambunctious America of the nineteenth century did not mind the prospect of a good squabble over Supreme Court Justices, ending with an indignant flinging out of one candidate or another. As Dickens noticed when he traveled to the U.S. in the 1840s, this nation was not afraid to spit – on the contrary, snufftaking and spitting were done in the most unlikely places. So decorum wasn’t our strong suit.

Even George Washington had one of his nominees rejected. John Tyler, that eminently skippable president, put forward five nominees for the Court, and only one was approved. Grant had two of his nominations scotched, one because he was too a stalwart New England anti-slavery/ pro Reconstruction man (the tide was turning reactionary in 1870, as the liberating impulses of the late 1860s were Gone with The Wind), and one because, even by the standards of the gilded age, he was too venal.

I propose skipping the nineteenth century and heading straight into modern times.  Let’s begin with Judge John J. Parker. President Hoover had about as unlucky a year as any president could have in 1930. The economy collapsed. Nobody loved him anymore. And the Senate rejected his Supreme court nominee.

 


John Barry provides a look at a pivotal moment in the history of the GOP: shifting from the party of Lincoln to the party of Jeff Davis

The roots of that abandonment were in Hoover’s greatest achievement in the 1920s – his leadership of the Federal response to the great flood of 1927, when the Mississippi river flooded the Delta. As John Barry’s Rising Tide has shown, the flood had a surprisingly large impact on American politics. It was, for one thing, the largest flood ever experience in the U.S. at its greatest extent, had flooded 27,000 square miles. Much of the flooded land was in the state of Mississippi, where cotton plantations depended on a black labor force that they could pay slave wages to. The white elite was very fearful that black laborers would escape the Delta – and where then would they find such a mistreatable labor force? This fear was a powerful driver of the racial atrocities committed during the flood. Hoover was, in fact, informed of these atrocities from numerous sources:Judge Parker started out as a politician in North Carolina. A republican politician in the South. It was easier to be Republican in the solid South under Hoover, because Hoover was, in a sense, the grandfather of Nixon’s Southern strategy. He pursued his own Southern strategy in the election of 1928, playing off the anti-Catholic fears of the South.  As part of that play, he abandoned  being too up front about African-American Republicans.

A letter from a black Republican activist read: “It is said that many relief boats have hauled whites only, have gone to imperilled [sic] districts and taken all whites out and left the Negroes; it is also said that planters in some instances hold their labor at the point of a gun for fear they would get away and not return. In other instances, it is said that mules have been given preference on boats to Negroes.

Another and paradoxical aspect is that the Federal government expanded its role enormously in the aftermath of the flood. Hoover signed on to a proto-New Deal program, in effect putting the tab for river management on the Federal budget. There’s a reason we have a Hoover, rather than a Roosevelt, dam. Of course, another result of the maneuvering to get the Fed to administer Mississippi flood control was that Southern states were the major beneficiary of Federal monies. And yet, this fact was disguised by the way Hoover presented the project as simply expanding an earlier agreement by which the states and the Federal government split the water management tab. This was done by overtly misleading accounting. In the end, the South could get its Federal money and pretend that it was just pay-back – thus keeping the moral fiction alive that the Federal government was a bad Yankee invention.

It is necessary to go into these details in order to understand why Hoover would elevate a North Carolina obscurity to the post of Supreme Court justice. In Hoover’s mind, the South was now in play, and he was on a charm offensive to get Southern votes for 1932. It hadn’t yet penetrated the political mind that the Depression was for real.

Observers saw what Hoover was doing. The New Republic wrote: “it was apparent as soon as President Hoover announced the appointment of John F. Parker of North Carolina that he had chosen an undistinguished candidate for political reasons…”

And, indeed, the fight against Parker was mounted as a political campaign. As the New York World said, sensibly, in an editorial: … the Senate has every right, if it so chooses, to ask the President to maintain on the Supreme Court bench a balance between liberal and conservative opinion. This is of course true – although in the years high decorum of the neo-liberal period, this idea has been systematically mealy-mouthed away as “playing politics” with the Court.

Two forces militated immediately against Parker. One was the NAACP, which noted that Parker, though a Republican, had run a campaign in North Carolina promising to suppress black voting, because “we recognize that he [the negro] has not reached the stage in his development where he can share in the burdens and responsibilities of government.”  The other, stronger force militating against Parker was the AFL. Parker’s record as a judge was unsympathetic to labor in the extreme.

William Rehnquist styling the 70s GOP look.
In 1971, in an essay in the NYT, William Rehnquist, who had been nominated for Nixon for a post on the Court, wrote an essay about nominee rejects for the NYT. It is a nicely written essay, centering on Parker’s nomination, which was, Rehnquist writes, “one of the most remarkable battles over a judicial nominee in the upper chamber.” Rehnquist gives a lot of credit for the defeat of Parker to Senator William Borah, a populist Republican senator for whom I myself have a lot of heart. Idaho, before it became famous as neo-Nazi vacationland, was a radical state, and elected senators who thought accordingly, from Borah to Church. I have to give Rehnquist, a standard economic conservative, a lot of credit for giving Borah credit. Most conservative scholars in this area consider Borah a dirty dog, smearing Parker by associating him with his decision on a case involving “yellow dog contracts” – contracts that impressed an obligation on the employee who signed them not to join a union. Borah, and the Union’s, argument against these contracts may seem like an issue from another era, but – in my opinion – these arguments are very relevant to the contract creep we see today, when corporations force employees to sign non-compete and non-disclosure contracts. Borah ended his indictment of Parker’s position with an excellent summation of the duties incumbent on the Senate when deciding on the President’s nominee: : “In passing upon the fitness of the nominee to that court we are bound to take into consideration everything which goes to make up a great judge – his character and standing as a man, his scholarship, his learning in the law, and his statesmanship.”Nobody at that point doubted Parker’s character and standing. It was his learning in the law – his decisions – that doomed him.Parker’s fall presaged Hoover’s own. Hoover lost every state in the South in 1932, including North Caroline, where Roosevelt beat him 497,566 to 208,344. Somehow, I think that loss must have really bit.As for Judge Parker, he went on to a fairly distinguished career. The Dictionary of North Carolina Biography chronicles the life of a state bigwig, crowned by his appointment as one of the lawyers in the Nuremberg trials. Of course, the irony of a man who believed the “negro” was not yet in a state of development to vote representing the Allied moral case at the Nuremberg trial is something I can only contemplate – hoping that by 1945 he had learned something. In 1957 he became the chairman of Billy Graham’s General Crusade committee. Then he died, and was buried with honors.Life goes on after you are rejected by the Senate. It is all creme.
Roger Gathmann

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