Friday, October 16, 2020

William Brennan and Election Year Nominations

Gerard N. Magliocca

Let's enter the wayback machine and return to 1956. In September, Justice Sherman Minton retired from the Court. Minton was a Democrat named to the Court by President Truman. His health was poor, though he lived until 1965. Apparently Justice Minton retired when he did because he had reached fifteen years of overall judicial service and was therefore entitled to a full pension. Justice Minton was no fan of President Eisenhower and supported Adlai Stevenson in the upcoming presidential election. Still, he did not see any issue in retiring shortly before the election and giving Eisenhower a vacancy. Such a scenario is hard to imagine today, to say the least.

What did Eisenhower do with the vacancy? He nominated William Brennan. Why? Mainly because Brennan was a Catholic Democrat, and Eisenhower thought this would help him with that constituency. But he gave Brennan a recess appointment. After Eisenhower was reelected, the recess appointment was renewed in January 1957. Then Justice Brennan was confirmed by the Senate in March. This leads to a fascinating question. What if Adlai Stevenson had won in 1956? There must have been commentary about that point then, but I don't know what was said. Perhaps Stevenson would have also nominated Brennan because he was a Democrat, but perhaps not. 

What's interesting is that nobody seemed bothered by the recess appointment of a Justice less than two months before the election. Indeed, you could argue that this was the correct solution because a recess appointment left open the possibility that a change in the White House could lead to a new nominee. On the other hand, such an appointment would create an impossible conflict-of-interest for that Justice in a case involving a disputed presidential election. So giving Judge Barrett a recess appointment may not have worked or been tolerated. Or maybe such an appointment would have worked if people thought (as they may well have in September 1956) that the President was going to be reelected.


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