Re: His Accidency?

Slate's blog on legal issues.
May 2 2008 11:48 PM

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

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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.

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