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Mr. Justice Black and “Senatorial Courtesy”

Published online by Cambridge University Press:  02 September 2013

Kenneth C. Cole
Kenneth C. Cole
Affiliation:
University of Washington
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Extract

On August 12, President Roosevelt nominated Senator Hugo L. Black of Alabama to be an Associate Justice of the United States Supreme Court. On receipt of the message, Senator Ashurst moved for its immediate consideration on the ground that “whenever the Executive honors this body by nominating a member thereof, that nomination is confirmed without reference to a committee, for the obvious reason that no amount of investigation or consideration by a committee of the Senate could disclose any new fact or shed any new light upon the character, attainments, and ability of the nominee, because if we do not know him after long service with him, no one will ever know him.”

Type
American Government and Politics
Information
American Political Science Review , Volume 31 , Issue 6 , December 1937 , pp. 1113 - 1115
Copyright
Copyright © American Political Science Association 1937

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References

1 Congressional Record, 75th Congress, 1st Session, p. 11214.

2 E.g., by Senator Bridges, op. cit., p. 11491. It may be observed, in passing, that the practice of holding public hearings is decidedly not one of long standing, whatever may be said for its merits. See Cole, K. C., “The Rô1e of the Senate in the Confirmation of Judicial Nominations,” in this Review, Vol. 28, pp. 875–894, at p. 877Google Scholar.

3 The Supreme Court in United States History (Boston, 1928), Vol. 1, pp. 299–300Google Scholar. As it happened, the high man in this poll was ineligible because he was a member of the Congress which had created the post.

4 Congressional Record, 71st Congress, 2nd Session, p. 7808.

5 There have been some exceptions. The nomination of Henry Baldwin (confirmed January 4, 1830, by a vote of 41 to 2) was not referred to committee. And in the course of debate on the nomination of John J. Crittenden (which was referred to committee), on December 17, 1828, it was protested that it had never been the custom to refer any judicial nominations to committee. See Congressional Debates, Vol. 5, pp. 90–93Google Scholar.

6 Senate Document 150, 72nd Congress, 2nd Session (1932), p. 43.

7 John J. Crittenden of Kentucky in 1828; John McKinley of Alabama in 1837; George H. Williams of Oregon in 1873; Stanley Mathews of Ohio in 1887; Roscoe Conkling of New York in 1882; and Lucius Lamar of Mississippi in 1887.

8 John J. Crittenden (postponement), Stanley Mathews, Lucius Lamar.

9 That of George H. Williams. See Journal of Executive Proceedings of the U. S. Senate, Vol. 19, p. 189Google Scholar.

10 Professional opinion, while not opposed to White, was hardly in sympathy with the Senate procedure employed, in view of the fact that the Senate had just rejected the nominations of William B. Hornblower and Wheeler H. Feckham, both of whom were highly esteemed at the bar. See American Law Review, Vol. 28, pp. 274–276Google Scholar.

11 The nomination of George E. Badger of North Carolina by President Fillmore on January 1, 1853. See Warren, op. cit., Vol. 2, pp. 242–244.

12 For example, Senator Borah, who said definitely that he would vote against a member of the Ku Klux Klan for any position, but who deprecated investigation because of senatorial courtesy. Congressional Record, 75th Congress, 1st Session, p. 11652.

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