Spite Nominations

Spite Nominations Among considerations entering into Supreme Court nominations is that of presidential revenge. Judicial or Senate attacks on the president's policies with resultant damage to the chief executive's political power have induced White House retaliation. Interbranch retribution may take the form of spite nominations to the Court. Appointments so motivated span a continuum reflecting at one pole generalized or implicit presidential antipathy toward the Court or the Senate. Richard Nixon's appointment of Warren Burger to succeed Earl Warren as chief justice seemed a rebuke to Warren's perception of the Court as a social and political superlegislature. The nomination of Roger Taney as chief justice by Andrew Jackson reflected presidential dissatisfaction with the Senate's previous treatment of the loyal political ally. Franklin D. Roosevelt's selection of Hugo Black reflected presidential retribution against the Senate for its defeat of his court‐packing bill, which Black had supported, and against the Court for its anti–New Deal judicial record.

At the opposite pole are nominations intended as explicit expressions of presidential wrath. Occurring against an existing or prospective changing constitutional tide, such vindictive appointments emerge in the wake of senatorial defeats administered to the president's initial choice for the vacant Court seat. A thwarted chief executive predictably emits public or private expressions of resentment over the treatment accorded his nominee by the recalcitrant Senate. He resolves to stay the course, to stand by his loyalists in the Senate, and to name a second choice whose political‐judicial profile broadly resembles that of his predecessor. By means of such strategy, the president seeks to recover lost political capital, and cause the Senate to capitulate and confirm the second choice.

Three times in the twentieth century the Senate has wielded its constitutional prerogative by rejecting the president's most favored Court nominee: Robert Bork (1987), Clement Haynsworth (1969), and John J. Parker (1930). Perceived political and ideological attributes of these federal courts of appeals judges ignited fatal Senate opposition. Southerners Parker and Haynsworth were demonized as antilabor and anti–civil rights while Bork was deemed to be unsympathetic to prevailing fundamental rights jurisprudence. In defeat, Presidents Ronald Reagan and Richard Nixon voiced public indignation and openly promised a nominee whose credentials would be no more satisfactory to the Senate than those possessed by the initial choice. But Reagan's nomination of youthful jurist Douglas Ginsburg dissolved amid news of prior marijuana use while Nixon's second choice, circuit judge George Harrold Carswell, met Senate defeat based on the aspirant's perceived racism and professional mediocrity. Their explicit spite nominations destroyed, Reagan and Nixon both acted as political pragmatists. They selected substitute nominees with different regional affiliations and possessed of impeccable professional and seemingly moderate ideological credentials: Anthony M. Kennedy and Harry A. Blackmun, respectively.

Only Herbert Hoover easily won confirmation for his second‐choice nominee, Owen Josephus Roberts. Although Hoover made no public protest, he fulminated in private against the Senate's treatment of Parker while finding the perfect foil for his antagonists in the Senate. Corporate lawyer Roberts had publicly proclaimed himself an apostle of economic laissez faire, prosecuted seditious speech cases during World War I, espoused an internationalist foreign policy, and opposed national prohibition. All were attributes anathema to elements of the anti‐Parker Senate coalition. But personable Roberts could be presented as a liberal. It was an image cultivated as a crusading special prosecutor in the Senate's “Teapot Dome” oil scandal investigations and by his philanthropic association with Lincoln University, an African‐American institution. His putative liberalism turned out to be largely in the eyes of the exhausted and credulous Senate, a fact apparent in Roberts's subsequent Supreme Court record.

Eschewing overt vindictiveness, emotion, and cursory background investigation of his replacement candidate, Hoover succeeded where Nixon failed in his spite nomination of Carswell and where Reagan fell short with his emotive and hasty Ginsburg appointment. With Roberts, Hoover offered a pragmatic second‐choice candidate whose public image belied intensely held attitudes on major public policies, wholly incongruent with those held by the president's Senate opponents who unanimously confirmed his nominee.

See also Nominees, Rejection of; Political Process; Senatorial Courtesy.

Bibliography

Peter G. Fish , Spite Nominations to the United States Supreme Court: Herbert Hoover, Owen J. Roberts, and the Politics of Presidential Vengeance in Retrospect, Kentucky Law Journal 77 (1988–1989): 545–576.

Peter G. Fish