The Nomination of Judge John J. Parker to the U.S. Supreme Court, III

The Nomination of Judge John J. Parker to the U.S. Supreme Court, III

By Ray Hill

 

In the twentieth century, only four nominees to serve on the Supreme Court of the United States have been rejected; all were the nominees of a Republican president and three of the four were rejected by Democrats, who controlled the United States Senate. John J. Parker, was the first nominee to be rejected by the U. S. Senate in a span of 72 years. Parker was also the only one of four nominees to be rejected by a Senate controlled by his own political party. Parker’s nomination was the beginning of the modern conformation process for future nominees to serve on the U. S. Supreme Court.

Following the death of Associate Justice Edward Terry Sanford of Knoxville, President Herbert Hoover nominated Fourth Circuit Court of Appeals Judge John J. Parker of North Carolina to serve on the U. S. Supreme Court. The White House summoned the working members of the national press for an announcement where President Hoover declared his intention to nominate Parker to succeed the late Justice Sanford.

The nomination of Judge Parker to succeed a Tennessean was an acknowledgement of the support Herbert Hoover had received from Southern states during the 1928 presidential campaign. Hoover had been the first Republican candidate for the presidency to carry several Southern states since Reconstruction after the Civil War. Hoover had won Tennessee, Texas, Florida, Virginia, and North Carolina against Democrat Alfred E. Smith of New York. Indeed, Hoover was the first GOP presidential candidate ever to carry solidly Democratic Texas. A Catholic and “wet” (meaning the governor was against national prohibition, which was the law at the time), the Protestant South had rebelled against Smith’s candidacy. Prominent Democrats bolted their own party to support Hoover, including U. S. senators Furnifold M. Simmons of North Carolina and Thomas Heflin of Alabama. Smith had only barely carried Alabama, winning by 7,000 votes.

Hoover’s nomination of Judge Parker represented a recognition of the South and initially there was some regional pride in Parker’s appointment. It was Tennessee’s senior United States senator, Kenneth D. McKellar, who caused a sensation by combing through files to find a copy of a letter written by Joseph M. Dixon, First Assistant Secretary of the Interior, to Walter Newton, the secretary (today it would be Chief of Staff) to President Hoover. Dixon, who had served as both U. S. senator and governor of Montana, knew a little something about politics and was a progressive Republican. Dixon’s letter to the presidential secretary urged the appointment of Judge Parker, as it would help with Republican gains in the largely one-party South. Dixon wrote Newton he believed North Carolina was the likeliest state among the Southern states to realign with the GOP. McKellar’s reading of the Dixon letter had curdled some of the support for Parker amongst Southerners. The last thing Democrats in the South wanted to see was a realignment of political parties and a competitive Republican Party. McKellar’s speech on the floor of the Senate was acknowledged to have badly wounded Judge Parker’s nomination to the Supreme Court.

Two organizations had opposed Judge Parker’s nomination to serve on the Supreme Court from the beginning: organized labor and the NAACP. The nomination of John J. Parker was also likely the first instance of pressure politics being used to successfully defeat the confirmation of a nominee for the United States Supreme Court.

If rebellion came more naturally to Democrats, Hoover’s own party had its own rebellious members, including Nebraska senator George W. Norris, who had bolted the GOP in 1928 to support Governor Smith. Norris, realizing he likely could not be renominated as a Republican, opted to run again in 1930 as an Independent. Norris would win two additional terms in the Senate running as an Independent. Norris had been a progressive Republican, which comprised a significant bloc of senators, including William E. Borah of Idaho, Bronson Cutting of New Mexico, Gerald P. Nye of North Dakota, and Hiram Johnson of California, who had been Theodore Roosevelt’s vice presidential nominee in 1912 when the former president had been the candidate of the Progressive or “Bull Moose” Party. Many progressive Republican senators had not been supportive of President Hoover’s nomination of Charles Evans Hughes to serve as Chief Justice of the Supreme Court following the resignation of William Howard Taft. Hughes had been governor of New York, an associate justice of the U. S. Supreme Court, and Secretary of State during the administrations of Warren G. Harding and Calvin Coolidge. Progressive Republicans fretted Hughes had made a small fortune as a lawyer by representing corporations and corporate clients. Others resented the fact Hughes had resigned as an associate justice of the high court to accept the 1916 GOP presidential nomination to run against incumbent Woodrow Wilson.

Likewise Judge Parker’s own political past became fodder for his opponents, Republicans and Democrats alike. Parker, a Republican in North Carolina, had been defeated for Congress, state attorney general, and governor in the elections of 1910, 1916, and 1920, respectively. Virtually everyone sitting in the United States Senate had gotten there through the popular vote of the people of their individual states. Successful politicians had little respect for someone who was a failed candidate for public office. Of more concern, especially to his progressive Republican and Democratic detractors, was John J. Parker’s association with former Attorney General Harry Daugherty. Daugherty had been President Harding’s Attorney General and had been irredeemably tainted in a series of scandals. Although never convicted of any wrong-doing, Daugherty was viewed with profound suspicion and distrust, especially after his close friend and political associate Jess Smith killed himself. Ironically, Parker had been an assistant to the Attorney General in an abortive attempt to investigate the Harding administration scandals. Many of the progressive Republicans in the Senate had been appalled by Judge Parker’s decision in a case involving “yellow-dog” contracts on behalf of the United Min Workers’ Union. For progressive, that particular decision exemplified John J. Parker was no liberal. Another issue which haunted Parker’s nomination was a statement he made as the GOP candidate for governor when he had been race-baited by a Democratic candidate, who accused Parker of welcoming the participation of black voters. Parker denied that was the case. Senator Arthur Vandenberg of Michigan, a Republican, claimed to struggle with the Parker nomination and said he truly wished to believe in the Judge’s “independence and fidelity.” Vandenberg was not alone in worrying about the views expressed by candidate Parker during his 1920 campaign. Vandenberg said he believed “the authority of the Supreme Court depends upon the measure of public confidence which it enjoys.” Senator Vandenberg continued, pointing out, “Therefore if 18,000,000 colored citizens of the United States have a basis for feeling that Judge Parker is prejudiced against their political rights, it is impossible to ask of them that they still give him their confidence in respect to these constitution questions.” At the time, most black voters were Republicans and many shared their opposition to Judge Parker’s confirmation with their senators. Otis F. Glenn and Charles Deneen, the GOP senators from Illinois, received hundreds of telegrams from Blacks in Chicago. Deneen, facing a serious primary challenge, was especially sensitive to the concern of his black constituents. Senator Arthur Robinson of Indiana, who had allegedly helped to win his seat in the U. S. Senate with support from the Ku Klux Klan, flatly refused to support the Parker nomination.

If opposition by blacks and the NAACP caught the attention of many Republican senators, it was not an impediment to Southern senators, many of whom frankly agreed with Judge Parker’s racial views as expressed in his 1920 gubernatorial campaign. Still, the nomination of Judge John J. Parker attracted profound opposition from a coalition of progressive Republicans and populist Southern Democrats. Parker retained the support of most Republicans inside the Senate, as well as a handful of Democrats. Judge Parker had attracted endorsements from numerous other jurists and no less than Supreme Court Justice Harlan Fiske Stone (later Chief Justice from 1941 until his death in 1946) wrote Justice Department officials he had “formed a very favorable opinion” of Judge Parker due to Parker’s attitude as the prosecutor in a criminal case. Stone had written the letter in response to a query regarding Parker when the North Carolinian was being considered for appointment to the Fourth Circuit Court of Appeals.

Henry Fountain Ashurst, the senior U. S. senator from Arizona, was a courtly man all too cognizant of his position in the greatest deliberative body in the world and he did his best to look the part. Ashurst relished his role as a senator of the United States and enjoyed attention as much as anyone. Famed for his colorful and elaborate language, which flowed from his lips like a torrent of sparkling silver, Henry Fountain Ashurst could fill the Senate galleries when he rose to speak on the floor. It was Senator Ashurst who caused newspaper headlines to blare across their front pages one legislator may have been offered a bribe to vote for John J. Parker.

Not surprisingly, senators wanted to know the identity of the colleague who had supposedly been offered an appointment to vote for confirmation of Judge John J. Parker’s nomination. Senator Henry Allen, a Republican from Kansas, demanded, “Who was the Senator who was approached?” Suddenly, the normally loquacious Ashurst was rather silent before replying the senator in question was present in the Senate Chamber and could easily speak for himself. Senator Ashurst looked hopefully in a direction, but no senator offered to rise. That evidently angered Ashurst whose face was quite flushed and his hair “disheveled.” “All right,” Senator Ashurst shouted. “I will tell.”

The Senate was hushed as Henry Fountain Ashurst said, “Last Saturday noon in the presence of Senator Bratton, a Senator sitting in this chamber told me an offer of a judgeship had been made to him.” “Yes, but who was it?” Henry Allen snapped. That was when Ashurst once again looked in a particular direction and the stillness in the Senate Chamber was such that Ashurst’s voice, which was quite low, could nonetheless be heard clearly as he said, “Senator Dill.”

Clarence Dill was serving his second term in the United States Senate from Washington State. Dill, having been publicly identified by Henry Fountain Ashurst, finally got to his feet and said he had not taken the offer at all seriously and related he had been approached by a nameless “gentleman” from his home state who insisted the administration was prepared to “reward with almost anything” those senators willing to vote for Parker.

As Senator Dill spoke, his voice was so “husky” some of his colleagues asked him to speak more loudly. “I have hesitated to inject myself into this disturbance,” Dill confessed. “all the Senator from Arizona said was in good faith, but he is mistaken.” Senator Dill explained. That caused Henry Fountain Ashurst to shout, “Well, then, tell what you told me in the presence of Senator Bratton, at lunch the other day.”

“All right,” Dill agreed. “I was talking about being impressed with the pressure that was being brought to bear on me to vote for Judge Parker. I told about a gentleman from my own State who suggested I would be in high favor with the administration if I should vote for Parker.” Senator Dill told his colleagues, “I was amused at the gentleman’s statement and tried to draw him out. He told me I would be rewarded with anything I wanted.” Dill paused before saying, “I told him the trouble was I did not want anything.” Dill quoted the anonymous “gentleman” as telling him, “Well, judgeships are always open.” Senator Dill then claimed, “I told him I would rather be a private citizen than a judge when I retired. I did not at any time consider it a challenge to my integrity. I did not think it would justify anything serious being said about it.”

Dill insisted there was no need for an investigation. “The gentleman who talked to me was a personal friend who did not claim to have any assurance from President Hoover, but indicated he could do a lot for me at home,” Dill said. It seemed then and it seems now rather a poor explanation. Supporters of Judge Parker immediately insisted any vote on the nomination be delayed until a proper investigation could be made.

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