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July 11, 2005

What Was This World Coming To?

I
spent the day today at the FDR Presidential Library in Hyde Park, NY, doing some research. I came across a document that made me smile. It's a diary entry from Attorney General Francis Biddle, dated October 28, 1942.

Here's the story: in 1942, after just a year's service, Associate Justice James F. Byrnes left the Supreme Court to become the Director of Economic Stabilization. At the time Attorney General Biddle wrote this diary entry, he was deep in the search for Byrnes' replacement. Roosevelt did, in fact, end up settling on Wiley Rutledge.

Isn't it just, I don't know, quaint to see a President and an Attorney General out looking for a "liberal" for the U.S. Supreme Court?

(And in 1942, no less! Good God! Didn't they know there was a war on?)

Posted by Eric at July 11, 2005 9:10 PM

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Comments

Why do you visit the Roosevelt Library after staining his reputation?

Isn't that being a hypocrite?

Posted by: Kjell at July 11, 2005 11:15 PM

Prof. Muller -- While it may be "quaint", as you say, this is just the kind of line-crossing between branches that proves why "separation of powers" is so important. Presidents should make their own decisions about who to put on the SCOTUS without regard to litmus tests of the kind implied in AG Biddle's diary.

In fact, you may have read where President Bush, in the best spirit of presidential nomination authority, said he would not ask any nominee what their legal position is on anything. He's only interested in having someone of high character and excellent qualifications.

I suppose that his underlings may be the ones asking those on the short list all the hard questions, like: "do you believe the God described in the New Testement should control how you make decisions?" or, "do you believe Roe v. Wade is an evil decision that will, if left unchanged, sentence America to hell?" or, "do you believe the last 70 years of Commerce Clause jurisprudence is wrong, and Lochner should control?"

But that won't change the fact that Pres Bush won't be asking the questions. He'll just stick to name, rank, and serial number for the nominees on the list generated by his subordinates. Isn't that as it should be.

Posted by: marietta at July 12, 2005 1:38 PM

Kjell, I didn't stain Roosevelt's reputation. He did that all by himself.

Posted by: Eric at July 12, 2005 11:23 PM

Great post, Eric. As for the quaint part, though what did it mean to be a judicial "liberal" in 1942?

Posted by: Orin Kerr at July 13, 2005 8:27 PM