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American History: Transformation of the U.S. Supreme Court

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FDR's next-to-last nominee, Robert H. Jackson, was a longtime Roosevelt political supporter from the president's home state of New York, whom Roosevelt had named to succeed Murphy as U.S. attorney general. Only Roosevelt's final nominee, Wiley B. Rutledge, a five-year veteran of the federal appellate court for the District of Columbia and, before that, dean of the University of Iowa Law School, was a relatively little-known jurist rather than a highly visible Roosevelt administration official or partisan.

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Roosevelt's practice of naming experienced political veterans to the high court was likewise followed by his successor, Truman. President Truman's first nominee, as chief justice, was Frederick M. Vinson, his secretary of the Treasury and, before that, a 12-year veteran of the House of Representatives. Truman's three subsequent high court choices were, like Vinson, political as well as personal buddies of the president: Ohio Republican Senator Harold H. Burton, a former legislative colleague; Attorney General Tom C. Clark, a Texas political veteran; and Indiana Democratic Senator Sherman Minton. At the time, and in subsequent decades, many court historians have strongly criticized Truman for naming friends with less-than-impressive legal skills.

Roosevelt's nominees may have had no more judicial experience than Truman's, but with the exception of only Murphy, Roosevelt's choices, unlike Truman's, generally have received high marks from commentators and historians.

The quintessential example of a crucial Supreme Court appointment going to a politician with no prior judicial experience was President Eisenhower's choice of California Republican Governor Earl Warren to replace Vinson as chief justice in 1953. Warren had played a crucial role in helping Eisenhower capture the 1952 Republican presidential nomination over Ohio Senator Robert Taft, and the Supreme Court nomination was an agreed-upon reward for his earlier political support.

Had Warren's career as chief justice turned out differently than it did, the explicit quid pro quo of his selection might be regarded as a scandalous act of using a Supreme Court seat as simple political barter. Warren never became one of the court's more legally knowledgeable or analytically astute justices, but his leadership qualities within the group of nine, plus the simple and direct common sense that often was visible in his opinions, more than sufficed to make him, along with John Marshall a century earlier, one of the two greatest chief justices in American history.

Warren's remarkable success, notwithstanding his complete lack of any prior judicial experience, was due in part to the justices who followed him to the high court. President Eisenhower's next two appointees, John M. Harlan and William J. Brennan Jr., eventually emerged as the two most highly rated members of the 'Warren Court.' Harlan had served only briefly on the U.S. Court of Appeals based in New York before his nomination, and Brennan was promoted from the New Jersey Supreme Court, but both men, unlike Warren, were selected based upon their legal and judicial track records, and not their political experience or connections.

Harlan and Brennan turned out to be arguably the two finest Supreme Court jurists of their era. Harlan, though often pigeonholed as a conservative, was a thoughtful and sometimes unpredictable justice, someone who quickly emerged as the court's top judicial craftsman. Brennan, sometimes stereotyped as a glad-handing strategist, became Warren's closest friend and counselor and soon was authoring some of the court's most pathbreaking opinions.

President Eisenhower's two final appointees, federal appeals court judges Charles E. Whittaker and Potter Stewart, fell short of Harlan and Brennan's stature. Whittaker, a Kansas friend of Eisenhower's family, had served as a lower court federal judge for three years before his elevation, and Stewart had spent four years on the U.S. Court of Appeals prior to his promotion. Stewart became an influential voice within the court during the 1960s and 1970s, but Whittaker retired after only five personally stressful and unproductive years of service.

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