The nomination of Justice Brennan: Eisenhower's mistake? A look at the historical record.

• Author: Wermiel, Stephen J.
• Position: Supreme Court Justice William J. Brennan, Jr.

The nomination of William J. Brennan, Jr. in 1956 to be an associate Justice of the U.S. Supreme Court occupies that familiar place in modern American legal history that is at once both a tangible event and a subject of considerable mythology and speculation.

The mythology centers on several issues about the selection of Justice Brennan, including how he came to the attention of the White House, whether his mentor--the eminent legal scholar Arthur Vanderbilt--supported the choice, and whether the appointment was a mistake for President Eisenhower.

This article seeks to demystify the appointment of Justice Brennan by describing his selection and examining the widely circulated myths. Research for this work is based on numerous interviews with major participants in Justice Brennan's selection, including Justice Brennan himself, and on an extensive documentary record that has not previously been examined in full by researchers.

After describing the selection and appointment of Justice Brennan, this paper concludes that, while complaints expressed by President Eisenhower about Brennan in the years after his appointment may have reflected genuine frustration with Brennan's liberal bent, this dissatisfaction was not reflective of the factors that influenced Eisenhower when he selected Brennan. In marked contrast to the focus of the current nomination process on judicial philosophy and changing Supreme Court outcomes, little attention was paid to the substance of Brennan's legal views at the time of his nomination. Brennan fulfilled the specific purposes for which he was chosen: he was a Democrat, a Catholic, and a state court judge; he was comparatively young for a Supreme Court nominee; and he remained committed to reform efforts to reduce delays and backlogs in the nation's courts. All of these were important qualities for the White House, which was then little more than five weeks away from a presidential election.

I

A brief biographical sketch helps set the stage. Brennan was born in Newark in 1906, the son of Irish immigrant parents. His father was a laborer who rose in the ranks of the union to become executive of the local. Concern over the union's welfare at the hands of local officials and police prompted the elder Brennan to run for the Newark City Commission, the equivalent of the city council. A top vote-getter, the elder Brennan served as Public Safety Commissioner throughout the 1920's while his son attended the Wharton School of Finance at the University of Pennsylvania and then the Harvard Law School. Justice Brennan graduated Harvard Law in 1931, a year after his father died.

Before and after World War II, Brennan's law practice focused heavily on labor relations. The establishment Newark firm in which he practiced, Pitney, Hardin & Ward, later Pitney, Hardin, Ward & Brennan, represented management, not workers, an often uncomfortable position for Brennan.

After World War 1II Brennan became active with a group of young lawyers who were pressing for reform of the New Jersey judicial system. In 1947, New Jersey adopted a new constitution, including restructured courts; and Brennan agreed to help put the new plan into effect. He was appointed to the new superior court bench in 1949 by a Republican governor, although Brennan was a Democrat. His mentor was Arthur Vanderbilt, the nationally prominent legal figure and New Jersey Supreme Court Chief Justice for whom Brennan quickly became a trusted lieutenant and for whom Brennan led statewide efforts to eliminate congestion and long delays in the courts. For Brennan, this interest in court reform was not simply a matter of efficiency; it was directly connected to his view of the need for fairness and compassion in the law. Brennan was quickly promoted to the superior court's appellate division, and in 1952 to the New Jersey Supreme Court, where Vanderbilt was Chief Justice. There, Brennan cemented his relationship as Vanderbilt's right-hand man, no small achievement since Brennan frustrated Vanderbilt by disagreeing with him on a number of important court decisions.(1) Brennan traveled the state advocating the reforms that he and Vanderbilt favored, particularly pre-trial conferencing in all cases and docket control and calendar management for state court judges, which in those days were controversial propositions.

Brennan's record on the New Jersey Supreme Court has long been the focus of speculation. The popular view is that he was a moderate who turned liberal once on the U.S. Supreme Court. However, both Brennan's friends in New Jersey at the time and other local legal observers knew that he was unmistakably liberal, and his record of decisions affirms that view.(2)

Although the state court had little occasion to deal with federal constitutional questions, Brennan wrote a few opinions that foreshadowed his approach on the U.S. Supreme Court. In In Re Pillo,(3) he took a broad view of the privilege against self-incrimination, finding the privilege in New Jersey to be based on common law tradition, rather than on the Fifth Amendment. In Adams Theatre Co. v. Keenan,(4) he took a strong position against prior restraint of free expression. He also expressed strong support for the guarantee against double jeopardy in State v. Midgeley.(5)

In his most famous state court dissent, State v. Tune,(6) he excoriated the majority for refusing to allow an accused murderer to inspect his own confession. "It shocks my sense of justice that in these circumstances counsel for an accused facing a possible death sentence should be denied inspection of his confession which, were this a civil case, could not be denied," he wrote.(7) To Chief Justice Vanderbilt's argument that greater use of discovery in criminal cases would lead to increased perjury,(8) Brennan responded:

That old hobgoblin perjury, invariably raised with every suggested

change in procedure to make easier the discovery of

the truth, is again disinterred from the grave where I had

thought it was forever buried under the overwhelming weight

of the complete rebuttal supplied by our experience in civil

causes where liberal discovery has been allowed.9

An academic commentator at the time noted the strength of Brennan's dissent and agreed that discovery should be available in criminal cases. "To employ the tool in civil cases, and to rely upon adversary proceedings in murder cases, when the defendant's life may be at stake, is an anachronism," Rutgers Professor Robert E. Knowlton wrote.(10) When the case returned to the New Jersey Supreme Court one year later for a second decesion,(11) yielding the same result, another commentator observed "that Brennan, J.'s forceful dissent in the first hearing in the Tune matter is still a burr under the saddle in which the majority of the coutt rides."(12)

II

It is impossible to identify the precise moment at which Brennan first became the focus of the Supreme Court nomination process. There are no records available to pinpoint the process with that degree of precision.(13) Most participants agree, however, that the story really began in May 1956, more than four months before Brennan was chosen.(14)

On May 21 and May 22, 1956, the Justice Department convened the Attorney General's Conference on Court Congestion and Delay in Litigation. The unprecedented gathering of more than 80 judges, bar association presidents, and other lawyers took place in the Great Hall of the Justice Department. William P. Rogers, Deputy Attorney General at the time to Attorney General Herbert Brownell, was the impresario of the conference.

Brennan, then an associate New Jersey justice, delivered one of the major addresses of the two-day meeting on May 22, outlining New Jersey's experience with court reform. Brennan also served as moderator for the entire morning's discussion of the court reform experiences in New Jersey, Maryland, New York and elsewhere.(15)

One story that has circulated widely(16) is that Brennan was called by Vanderbilt at the last minute and asked to substitute for him, and that Brennan read from Vanderbilt's notes. His Supreme Court nomination, this story continues, was a mistake because it was based on an impression created by Brennan's remarks, which were really Vanderbilt's. This story is significant because it was largely the favorable impression created by Brennan at the conference, as well as his possession of the correct demographic qualities, that led to his selection. If the story is correct, then Brennan's selection would literally have been a mistake.

There is substantial evidence to contradict, although perhaps not to entirely put to rest, this myth that Brennan simply read Vanderbilt's notes, although the factual record makes for a less interesting story. First, Brennan's own office files contain a copy of a speech that is marked, "Address By Honorable William J. Brennan Jr., Prepared for Delivery before the National Conference on Congestion in the Courts."(17) In the upper left corner of the title page, the document admonishes, "For Release At 10:00 A.M. EDT, Tuesday, May 22, 1956." The FBI'S background investigation of Brennan in 1956 also observes that the Bureau's files include a copy of this speech, prepared for delivery.(18) Lest it appear that the obvious conclusion has been omitted, this text matches verbatim the printed transcript of what Brennan said at the conference, except for an ad-libbed introduction.(19) Underlying the story that Brennan only read Vanderbilt's notes is a broader misconception, the assumption that he would not have been able to give his own address because Vanderbilt was the reformer and Brennan just a functionary. This is a misconception. Throughout his four-year tenure on the New Jersey Supreme Court, Brennan often gave speeches on state court reform efforts, and the speech at the Attorney General's conference draws on his earlier efforts. He traveled the state, advocating, explaining, and implementing pre-trial...