Convictions: Slate's blog on legal issues

Re: His Accidency?

Professor Sam Bagenstos kindly responded to my post on Brennan's "accidental" rise to the Supreme Court:

There are certainly elements of the mistaken-identity story that are true, but I don't think Regnery is right that Brownell thought Brennan was a conservative. Herbert Brownell is widely acknowledged as having been largely responsible for President Eisenhower's appointment of so many liberal (at least on race) judges in the South. See, e.g., his obituary. 

Good point. But Sam's disagreement may be less with Regnery than it is with my paraphrasing of Regnery. He wrote that "New York liberal Republicans were desperate to stop [Eisenhower's "first choice," John Danaher] who, they knew would try to return the Court to its constitutional place." 

The key, though, was that Brownell wanted someone who, while closer to the center than Danaher, would meet Eisenhower's requirement that the nominee be a "judicial conservative."

That said, as much as I enjoy Regnery's version, I'm not yet convinced that it's actually accurate (or, as I suggested in my first post, it may well be "too good to be true"). In Pursuit of Justices, David Yalof is severely critical of that account, relying in part on Brennan's biographer's review of Brennan's files. By contrast, Regnery cites only an article in Chronicles magazine—hardly a first-rate digest of historical research.

His Accidency?

Earlier this week, National Review's excellent "Bench Memos" blog featured Gerard Bradley's thoughts on Justice William Brennan's "curious rise to the Supreme Court."  I dare say that Bradley omits the most "curious" aspect of Brennan's appointment—namely, a case of mistaken identity that apparently led to his nomination.

Al Regnery included this account on pages 217-18 of his recent book, Upstream: The Ascendance of American Conservatism.* He writes that Attorney General Herbert Brownwell, desperate to find an alternative to Robert Taft-supporter Judge John Danaher, discovered Brennan at an ABA conference. 

Witneessing Brennan's ABA speech, Brownwell concluded that he was the sort of "judicial conservative" that they wanted, and "hurried back to the White House to tell Eisenhower that he had found the perfect candidate: the fact that Brennan was a Democrat only made him more appealing, as Ike wanted to demonstrate that his administration was bipartisan."

So Brennan was offered the job.  And then:

... Eisenhower got a call from his old friend Arthur Vanderbilt, chief judge of the New Jersey Supreme Court, a Republican, who wanted to know why Ike was appointing a liberal Democrat to the high court.  No liberal, Ike replied, and referred Vandenberg [sic] to the speech Brennan had delivered before the ABA.  After a long pause, Vanderbilt told Eisenhower that Brennan had not written the speech, he had; Vanderbilt had sent Brennan to deliver it in his place, as he had laryngitis.

Whoops. I dare say that such mix-ups wouldn't occur today. Long gone are the days when a Brennan or Holmes or Souter can get that job without a thorough ideological background check by the president's men.

* Unfortunately, Regnery cites a secondary source (Chronicles magazine) for this story, so I can't say for certain that this story isn't too good to be true.