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Stevens, Holmes, Cardozo, and … Posner?

by Professor Will Huhn on September 13, 2009

in SCOTUS,Wilson Huhn

     Two weeks ago the AP speculated that Justice Stevens may be planning to retire, and Howard Fineman reportedly repeated those rumors this morning on the Chris Matthews Show.  At 89 Stevens is the second-oldest Supreme Court justice ever to serve, second only to Oliver Wendell Holmes, Jr., who retired in 1932 at the age of  90 years, ten months, and three days.  The appointment of Holmes and of Holmes' successor, Benjamin Nathan Cardozo, have something to teach us.

     According to the short biography of the justices maintained by The Oyez Project, Holmes was nominated by President Theodore Roosevelt in 1902.  Confirmation was swift, according to Oyez:

The Senate confirmed the appointment two days later.

     But the story of his replacement is even more instructive.  Here is a description of how Cardozo was chosen, according to Supreme Court historian Bernard Schwartz.  In his classic work "A History of the Supreme Court," Schartz writes:

     The departure of Holmes meant that the Court had lost one of its giants – the Justice who more than any other had set the theme for the twentieth-century jurisprudence.  Then a most unusual thing happened.  The all but unanimous national consensus was that  only one man deserved the succession to Holmes – Benjamin Nathan Cardozo.  From a political point of view, his appointment seemed impossible.  Cardozo was a New Yorker and there were already two on the Court from New York (Hughes and Stone); he was a Jew and there was already a Jewish Justice (Brandeis); and a conservative Republican President could scarcely name a liberal not a member of his party.

     The sentiment in Cardozo's favor overrued these objections.  Justice Stone told President Hoover that he was willing to resign to overcome the geographical objection and the powerful Senator from Idaho, William E. Borah, told the President that Cardozo belonged as much to Idaho as to New York.  Borah went on, "Just as John Adams is best remembered for his appointment of John Marshall to the Supreme Court, so you, Mr. President, have the opportunity of being best remembered for putting Cardozo there.  And so it turned out.  One of the few postitive things for which President Hoover is remembered is his appointmment of Cardozo to fill the Holmes seat.

     Are there any American judges who have the stature of Cardozo or Holmes – who command such respect that they could be nominated by a President of the opposite party or who could be confirmed by the Senate within 48 hours of being nominated? 

     I can think of only one – Richard A. Posner.  Posner has authored over 40 books on law and judging and may be the most frequently cited legal author – ever!  His judicial opinions, like his books, are pithy, readable, and persuasive.  As the leader of the jurisprudential school of Law and Economics Posner may be unacceptable to liberal Democrats who are particularly eager to restore political balance to a Supreme Court already heavily weighted in favor of conservative Republicans.  Like Cardozo, who was 62 at the time of his appointment and who served only six years on the Supreme Court, Posner is not a young man – he is 70.  Perhaps that is appropriate, though, in a "crossover" appointment.

     Those of you following this blog carefully know that while it is true that our country faces many serious challenges – two wars, an economy pulled back from the brink of collapse but still staggering, and the absolute necessity of developing a more efficient system for delivering and paying for health care – in my opinion the greatest challenge we face is the political division within our own country.  There is now a level of hatred I have not seen since the Vietnam War.  People seem to have forgotten that we are all Americans and that we need to come together to solve our common problems.  Such an appointment could help to restore trust and a sense of common purpose.

{ 1 comment }

Tim September 14, 2009 at 7:05 pm

I wholeheartedly agree.

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