Neil Gorsuch – The Intelligent Collector Magazine

Yes, Presidential Elections Have Consequences

Chief Justice of the Supreme Court John Marshall is featured on this Fr. 375 Serial Number One $20 1891 Treasury Note, which sold for $114,000 at an April 2018 Heritage auction.

By Jim O’Neal

In theory, there is no mystery or debate regarding the intention of the Founding Fathers in the selection of members to serve on the Supreme Court.

The Constitution crisply explains, in the second paragraph of Article II, Section 2, that the president shall nominate, and by and with the advice and consent of the Senate, shall appoint judges of the Supreme Court. This provision means exactly what it says and is unchanged by any modifications since its adoption. That includes a simple majority vote of the Senate to grant such consent, to reject or refuse to take action on the presidential nominee.

One idea discussed, but not acted upon, was Benjamin Franklin’s explanation of the Scottish mode of appointment “in which the nomination proceeded from the lawyers, who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves” – a uniquely clever way to eliminate superior competition.

What has changed is the adoption of the “nuclear option” in 2017, which invoked cloture to end filibustering in the Judicial Committee and forced a vote of the committee either up or down on making their recommendation to the full Senate. House Majority Leader Harry Reid had used it to great effect for all legislation that he allowed to the floor while the Democrats were in the majority. Republicans expanded it to include Supreme Court nominees after they regained the majority in 2016. Neil Gorsuch was elected to the Supreme Court under this new rule with a 54-45 Senate vote, picking up three anxious Democrat votes in the process. It’s widely assumed that current nominee Judge Brent Kavanaugh will be elected to the Supreme Court following a similar path since his opponents appear helpless to stop him.

As President Obama once explained, in not too subtle fashion, “Elections have consequences.”

It now seems clear that the Founding Fathers did not foresee that political parties would gradually increase their influence and that partisan considerations of the Senate would become more prominent than experience, wisdom and merit. This was magnified in the current effort to stymie a nomination when the opposition announced they would oppose any candidate the Chief Executive chose. Period. It may not seem reasonable on a literal basis, but it has gradually become routine and will only get worse (if that’s still possible).

It may astonish some to learn that no legal or constitutional requirements for a federal judgeship exist. President Roosevelt appointed James F. Byrnes as an associate justice in 1941 and his admission to practice was by “reading law.” This is an obsolete custom now – Byrnes was the last to benefit – that proceeded modern institutions that specialize in law exclusively. In Byrnes’ case, it’s not clear that he even had a high school diploma. But he was a governor and member of Congress. He resigned 15 months later (the second shortest tenure) in order to become head of the Office of Economic Stabilization and was a trusted FDR advisor who many assumed would replace Vice President Henry Wallace as FDR’s running mate in 1944. That honor went to the little-known, high-school educated Harry Truman, who would assume the presidency the following year when FDR died suddenly.

Thomas Jefferson never dreamed the Supreme Court would become more than just a necessary evil to help balance the government in minor legal proceedings and would be more than astonished that they now are the final arbiter of what is or isn’t constitutional. The idea that six judges (who didn’t even have a dedicated building) would be considered equal to the president and Congress would have been anathema to him.

However, that was before he met ex-Secretary of State John Marshall when he became Chief Justice of the Supreme Court and started the court’s long journey to final arbiter of the Constitution when he ruled on Marbury v. Madison in 1803. There was a new sheriff in town and the next 40 years witnessed the transformation of the court to the pinnacle of legal power. They even have their own building thanks to President William Howard Taft, who died two years before it was complete. Someday, Netflix will persuade them to livestream their public discussions for all of us to watch, although I personally prefer C-SPAN to eliminate the mindless talking heads that pollute cable television.

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chair and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].

We Have Lost Something Sacred in Today’s Judicial Nomination Process

John Jay (1745-1829) was the first Chief Justice of the United States.

By Jim O’Neal

The Supreme Court was created in 1789 by Article III of the U.S. Constitution, which stipulates “the judicial power of the United States shall be vested in one Supreme Court.” Congress organized it with the Judiciary Act of 1789.

John Jay of New York, one of the Founding Fathers, was the first Chief Justice of the United States (1789–95). Earlier, he was president of the Continental Congress (1778-79) and worked to ratify the U.S. Constitution by writing five of the Federalist Papers. Alexander Hamilton and James Madison wrote the other 85-plus essays, which were published in two volumes called “The Federalist” (“The Federalist Papers” title emerged in the 20th century).

Nearly 175 years later, in 1962, President John F. Kennedy nominated Byron Raymond “Whizzer” White to replace Associate Justice Charles Whittaker, who became chief legal counsel to General Motors (presumably with a nice salary increase). Whittaker had been the first person to serve as judge at all three levels: Federal District Court, Federal Court of Appeals, and the U.S. Supreme Court (a distinction matched by Associate Justice Sonia Sotomayor).

White was the 1960 Colorado state chair for JFK’s 1960 presidential campaign and had met both the future president and his father Joe while attending Oxford University on a Rhodes Scholarship in London when Joe Kennedy was ambassador to the Court of St James. This was after White had graduated from Colorado University Phi Beta Kappa, where he was also a terrific athlete, playing basketball, baseball and finishing runner-up for the Heisman Trophy. He is unquestionably the finest athlete to serve on the Supreme Court.

He continued mixing scholarship and athletics at Yale Law School, where he graduated No. 1 in his class magna cum laude and played three years in the National Football League for the Pittsburg Pirates (now the Steelers). He was elected to the College Football Hall of Fame in 1954.

Judge White was in the minority on the now-famous Roe v. Wade landmark decision on Jan. 22, 1973. Coincidentally, there was a companion case that has been virtually forgotten called Doe v. Bolton (Mary Doe v. Arthur K. Bolton, Attorney General of Georgia, et al.) that was decided on exactly the same day and on the identical issue (overturning the abortion law of Georgia). White was in the minority here, too.

White’s nomination was confirmed by a simple voice vote (i.e. by acclamation). He was the first person from Colorado to serve on the Supreme Court and it appears that one of his law clerks … Judge Neil Gorsuch, also from Colorado … most likely will become the second, although it is unlikely he will receive many Democratic votes, much less a voice vote.

Times have certainly changed in judicial politics and, unfortunately, for the worse … sadly. Advise and Consent has morphed into a “just say no” attitude and we have lost something sacred in the process.

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chairman and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].

Appointments to Supreme Court Have a Long History of High Drama

Chief Justice Earl Warren swears in John F. Kennedy on the cover of the Jan. 27, 1961, edition of *Time* magazine. This copy, signed by Kennedy, sold for $1,135.25 at a December 2012 auction.

By Jim O’Neal

On June 25, 1968, President Lyndon B. Johnson announced Chief Justice Earl Warren’s intention to retire and the nomination of Associate Justice Abe Fortas to replace him. However, after three months of acrimonious, partisan debate, the Senate refused to vote on the Fortas nomination. When Fortas asked the president to withdraw his nomination, Chief Justice Warren withdrew his resignation. “Since they wouldn’t confirm Abe, then they will be stuck with me!”

And, true to his word, Chief Justice Warren did not retire until June 1969, when President Richard Nixon replaced him with U.S. Court of Appeals Judge Warren Earl Burger.

In a bizarre twist, Justice Fortas had come under intense scrutiny and it was revealed that he had a questionable relationship with Louis Wolfson, the first modern corporate raider, according to Time magazine. This led to the resignation of Fortas – the first Supreme Court Justice to do so under these ethical circumstances.

Nixon was ecstatic that he would get to make a second nomination and he carefully chose judge Clement Haynsworth from the U.S. Court of Appeals-Fourth Circuit as part of a “Southern Strategy.” Congress seemed supportive, but to the president’s anger, frustration and embarrassment, the Judicial Committee found clear evidence of financial improprieties. Like Fortas, nothing illegal, but he went down 55-45 in a display of principled equality.

The president quickly countered with Judge Harrold Carswell, an undistinguished ex-District Judge with only six months of experience on the U.S. Court of Appeals. It was clearly an act of vengeance, intended to teach the Senate a lesson and downgrade the Court. Then, suspicious reporters dug up a statement to the American Legion in 1948: “I yield to no man in the firm, vigorous belief in the principles of white supremacy.”

Oops, there went the Southern Strategy, and the Senate voted him down.

It was another bitter defeat for the president, so Nixon turned North and picked Harry Blackmun of Minnesota and an old friend of Chief Justice Burger. He sailed through 94-0 and there would be no further vacancies for 15 months, when Nixon found himself in yet another imbroglio.

In September 1971, terminal illness compelled the retirement of Justices Hugo Black and John Marshall Harlan II, the two most influential figures and veritable giants of the law. Rather than a diligent search, Nixon tried the trial-balloon strategy and floated the name of U.S. Representative Richard Poff of Virginia, but his civil rights skeletons were easy to uncover and he withdrew. Then Nixon sent six nominees to the American Bar Association for review, but they quickly criticized them as manifesting “a relentless pursuit of mediocrity” and urged the president to “add some people of stature.”

In a dramatic television broadcast, Nixon revealed his “formal nominees” … Lewis F. Powell Jr. and a youthful (47) William Rehnquist (approved after three months of wrangling), who would serve on the court for 33 years – 19 as Chief Justice.

Whew! Next stop: March 20, 2017. Good luck, Judge Neil Gorsuch. This is a tough crowd.