Journal of Supreme Court History

Joining the Court: Pierce ButlerONMLKJIHGFEDCBA DAVID SC H R O ED ER zyxwvutsrqponm In a four-year span beginning in the summer of 1921, five new members took their seats on the Supreme Court, and three ofthose men—the middle three—arrived on the Bench within four months ofeach other. The first ofthe five was William Howard Taft, who, upon the death of Edward Douglass White, was named ChiefJustice of the United States by President Warren G. Harding. Minnesota corporate lawyer Pierce Butler wrote Taft a genial letter, extending his congratulations and best wishes. “1 felicitate you because it is an honor to any man to be chosen to that, the most exalted position in the world, and because no one who is qualified to discharge the duties of the office can fail to rejoice in attaining it. But the country is to be congratulated much more than you are.”1 Years earlier, former President Taft and attorney Butler both had been involved in the Grand Trunk Railroad arbitration, Taft as one of three arbitrators and Butler as one of two counsel for the Canadian government. Dur­ ing the proceedings, each man sized up the other professionally, and each was favorably impressed; the men developed a cordial per­ sonal relationship, staying at the same hotel and dining together several nights a week. As President, Taft had relished appointing men to the Supreme Court, and as Chief Justice he felt free to offer Harding and Attorney Gen­ eral Harry Daugherty advice on whom they should consider for a number of imminent vacancies. As the Court paused for its 1922 summer recess, the Chief believed it was not inconceivable that four seats might become vacant within a year or two. Oliver Wendell Holmes, Jr., was eighty-one and weakening physically. Joseph McKenna was seventy-nine and ailing mentally. At seventy-three, William Rufus Day had been quite ill earlier in the year and planned to retire soon. Mahlon Pit­ ney was only sixty-four, but he had suffered a stroke the previous year. In addition to the possibility of those vacancies came an actual and unexpected vacancy: John Hessin Clarke resigned to devote his energies to encouraging America’s entry into the League of Nations and “to read many books; to travel; and to serve my neighbors and some public causes.”2 Taft weighed in on Clarke’s resignation and replacement. Ifthis is true [Taft told Harding], and you have appointed Senator [George] Sutherland, I have no doubt he will be PIERCE BUTLERONMLKJIHGFEDCBA 145zyxwvutsrqp promptly confirmed, and I congratu­ late you on the strength he will give to the Court. Clarke was a good fellow, but I differed with him a good deal in respect to his constitutional views, and I do not think he has been happy on the Court. He lost his sister dur­ ing this last year, who was his only relative, and it has seriously affected his peace of mind. I think, too, he is not in good health, nor do I think that the work on the Court was pleasing to him. It seems a curious circumstance, though I could explain it, that he and McReynolds are bitter enemies, due largely to McReynolds’ overbearing and insulting attitude toward Clarke.3 Sutherland’s appointment was anticipated: he had expressed to Harding his wish for a Court appointment, and Harding had all but promised him the first open seat.4 With Sutherland on the Bench and Day’s retirement imminent, Harding and Harry Daugherty were bombarded with suggestions. Very early, Harding had voiced his desire to appoint a Democrat; a second criterion, that the nominee be a Catholic, seemed reasonable since the only representatives ofthat faith were the late Chief Justice and McKenna, whose seat many expected to be vacant soon. Taft and his alter ego Justice Willis Van Devanter saw John W. Davis, a Democrat and Solicitor Gen­ eral in the Wilson administration, as the best candidate. Charles Hilles, personal secretary to President Taft and Republican party insider during the 1920s, suggested Victor Dowling (a member of the Appellate Division ofthe New York Supreme Court) and Martin Manton (a U.S. Circuit Court judge), both of whom met...