Legal scholarship highlight: Presidential ambitions of Supreme Court Justices

During recent years, some critics of the Supreme Court appointment process have complained that the career backgrounds of Justices have become too narrow and that the Court would benefit from members who have had experience as elected legislative or executive officials. Until the middle of the twentieth century, many Justices had held prominent state and federal elected offices, but most Justices since then have come to the Court from federal judgeships that followed time in private practice, the federal bureaucracy, or academia. Sandra Day O’Connor, who served as minority leader of the Arizona state senate, was the last Justice to hold elected office.

 Shortly after David H. Souter announced his retirement in 2009, Senate Majority Leader Harry Reid expressed his preference for the appointment of someone other than a judge – “people with some real-life experience . . . rather than people who walk around in those black robes all the time.” Similarly, Patrick Leahy of Vermont, a member of the Senate Judiciary Committee, remarked in the wake of Souter’s retirement that he would “like to see more people from outside the judicial monastery, not just a judge.”  And Joseph R. Biden, a longtime member of the Senate Judiciary Committee before his election to the vice presidency, declared in 2007 that “We have enough professors on the bench . . . I want someone who ran for dogcatcher.”

Although the Court probably would benefit from Justices who had served as elected officials since such persons might have a better understanding of the practical realities of politics and have a more profound appreciation of such issues as separation of powers and federalism, history demonstrates that Justices who have extensive political experience may also have presidential aspirations. Nearly everyone agrees that presidential ambitions can distract Justices and tempt them to trim their decisions to appeal to constituencies that could assist their candidacy.  As Felix Frankfurter once asked, “What is more inimical for good work on the Court than for a Justice to cherish political, and more particularly, Presidential ambition?”

A surprisingly large number of U.S. Supreme Court Justices have harbored presidential aspirations. In at least three quarters of the presidential elections between 1832 and 1956, one or more Justices attempted to obtain a presidential or vice presidential nomination or were prominently mentioned as potential candidates. Until the 1950s, many Justices were appointed because they were prominent in national politics. Only a few became prominent in national politics merely because they were Justices. Several Justices conducted covert presidential campaigns, and a few even openly campaigned from the bench. During the nineteenth century, several received substantial number of votes at party conventions.  On numerous occasions, political parties or political leaders encouraged Justices to become presidential candidates.

Justice John McLean, for example, unapologetically sought the presidential nominations of at least eight parties during his tenure from 1832 to 1860, a period when the national party system was in flux. Another presidential hopeful, Chief Justice Salmon P. Chase, tried to obtain the Republican nomination in 1868. When Republicans rejected him, he angled for the Democratic nomination. Spurned by the Democrats, he pondered the possibility of running as an independent. Justices Stephen Field and Samuel Miller also were perennial candidates during the late nineteenth century. Meanwhile, Chief Justices Morrison R. Waite and Melville Fuller and Justice John Marshall Harlan I were prominently mentioned as presidential candidates, but they strongly discouraged such talk.

Presidential fever among Justices did not substantially subside during the twentieth century, even though Justices tended to become more discreet about their ambitions. Charles Evans Hughes, the former governor of New York, resigned from the Court in 1916 to accept a draft from the Republican convention, which needed him to re-unite the party. His immediate transformation from Justice to politician did not discredit the Court, in large measure because there was no evidence that he actively sought the nomination. Several other twentieth-century Justices, including Harlan Fiske Stone and Owen Roberts, were mentioned as possible presidential candidates, and there is some evidence that Roberts entertained such ambition.  President Truman unsuccessfully encouraged Chief Justice Fred Vinson, a former U.S. senator, to seek the Democratic nomination in 1952, and he offered the vice presidential nomination to William O. Douglas in 1948. Douglas, who nearly edged out Harry Truman to become Franklin Roosevelt’s running mate in 1944, appears to have hoped for the Democratic presidential nomination in 1948 and 1952 and the vice presidential nomination in 1960. After President Eisenhower’s heart attack in 1955, Chief Justice Earl Warren was prominently mentioned as a possible G.O.P. presidential candidate in 1956, with one Gallup poll indicating that fifty percent of the voters – including fifty-eight percent of Republicans – expected him to become the nominee. Although Warren publicly disavowed interest in the nomination, he privately expressed at least some interest in it. Warren’s experience as a three-term California governor and as the Republican vice presidential nominee in 1948, before he became Chief Justice, would have made him a natural successor to Eisenhower if he had not been Chief Justice.

No Justice during the past half century appears to have entertained serious presidential ambitions, probably because none except O’Connor has held elected office. It is perhaps no coincidence that O’Connor is the only Justice during that the time who has been mentioned as a possible presidential candidate – mostly in 1988, when her categorical disavowal of presidential ambition quickly quashed speculation about her ambitions.

An open campaign by a sitting Justice today would be virtually impossible because Rule 4.5(A) of Canon 4 of the American Bar Association’s Model Code of Judicial Conduct requires a judge to resign upon becoming a candidate for non-judicial office. Similarly, it would be almost impossible for any Justice today to conduct a covert campaign for the presidency. Such campaigns were possible until the middle of the twentieth century because most delegates until then were selected by party organizations, permitting Justices such as McLean, Chase, Miller and Field to quietly line up support among delegates without attracting public attention. Today, of course, the presidential primary system virtually precludes covert candidacies. Although a splintered convention could nominate someone who had not run in the primaries, this is unlikely. Not since 1952 has any major party needed more than one ballot to nominate a candidate. Even if a convention became deadlocked, it is unlikely that it would turn to anyone who had not run in the primaries, which confer popular legitimacy on candidates.

It is still possible, however, that a Justice might harbor presidential ambitions and resign from the Court if her prospects began to seem favorable enough for her to announce her candidacy. Such ambition could severely damage the Court because the perception that any Justice was adjusting her opinions to suit her presidential ambitions easily could erode public faith in judicial independence. A Justice also might be suspected of allowing her presidential ambitions to influence her votes on certiorari petitions insofar as she might wish to rule upon – or avoid – a politically sensitive issue. This would tend to diminish public confidence in the integrity of judicial opinions, which is the ultimate source of the Court’s power and influence. As Yale Law Professor Alexander Bickel once warned, the Court needs to stand above political involvement precisely because the constitutional issues that it addresses so often have political dimensions.

Presidential fever also might encourage an aspiring candidate to make public pronouncements about issues that the Court later might need to adjudicate. The political motivation to make extrajudicial comments about political issues could cause a Justice to violate Rule 2.10(B) of Canon 2 of the ABA Code, which prohibits a judge from making “pledges, promises, or commitments” regarding “cases, controversies, or issues that are likely to come before the court” in a manner that would be inconsistent with the impartial performance of the judge’s duties. Such comments could raise questions about whether the Justice had an open mind. A Justice who allowed political aspirations to influence his or her work also might violate Canon 1 of the ABA Code, which provides that a judge shall uphold the independence, integrity, and impartiality of the judiciary, and Rule 1.2, which states that a judge “shall avoid impropriety and the appearance of impropriety.”

The distractions of even a covert presidential candidacy also might result in a violation of Canon 2, which provides that “[a] judge shall perform the duties of judicial office impartially, competently and diligently.” It also could violate Rule 2.1 of Canon 2, which provides that the judicial duties of a judge take precedence over all the judge’s personal and extrajudicial activities.

Apprehension about the presidential aspirations of Justices has generated various proposals for constitutional amendments to prohibit Justices from becoming President or to make them ineligible for a period of time after they leave the Court.

Since presidential ambitions among Justices may so severely compromise the Court’s integrity, Presidents should be circumspect about nominating persons who seem likely to use the Court as a stepping stone to the presidency, even though the Court probably would benefit from having at least one or two Justices who had experience in an elective office.

William G. Ross is a professor of law at the Cumberland School of Law at Samford University. His website is williamgeorgeross.com. The full version of this article, Presidential Ambitions of U.S. Supreme Court Justices: A History and an Ethical Warning, can be read here.