The president is running for a second term. The Senate is closely divided along partisan lines. In September of election year, a vacancy unexpectedly occurs on the Supreme Court. The Republican president gets a chance to fill a seat formerly held by a Democrat. Thirty-eight days before the election he announces his choice.
But this is 1956. The Republican president is Dwight D. Eisenhower. His response would be almost unimaginable today.
Ike instructed his attorney General, Herbert Brownell, to seek out a Democrat to fill the seat.
“The President believed and acted upon the belief that the Supreme Court’s membership should represent diverse political points of view,” wrote Brownell. Three weeks later, the president appointed Democrat William Brennan, a justice on the New Jersey Supreme Court.
Susan Eisenhower, Ike’s granddaughter, recounts this story in her timely and illuminating book, How Ike Led. I asked her about it in the wake of Justice Ruth Bader GinsburgRuth Bader GinsburgBiden's Supreme Court commission ends not with a bang but a whimper The Hill's Morning Report - Presented by Altria - Jan. 6 panel flexes its muscle Why do progressives want to cancel women? MORE’s death.
“He really believed that the Supreme Court had to be ideologically balanced,” she told me, “or people would lose confidence in their decisions, thinking that they were actually political, and not based on legal precedent or other legal matters.”
The circumstances were not exactly the same as today. The Senate was out of session until January of the following year, something that rarely happens now. So, Eisenhower made a temporary “recess appointment” and put Brennan on the court immediately. Senate hearings on his permanent appointment took place months later in February 1957. Brennan was confirmed with just one dissenting vote. Wisconsin Senator Joe McCarthy, a Republican, thought the New Jersey Supreme Court justice was too soft on Communism.
Political considerations also came into play. Eisenhower had already appointed two Republicans and wished to appear non-partisan. Brennan was a Roman-Catholic. Some of Ike’s advisers thought his appointment might help the president’s re-election campaign among Catholic voters. Even so, the action was entirely consistent with his guiding principles.
While he tilted toward the conservative, Ike saw himself as carrying out a “middle way” between extreme left and right, both of which he distrusted. He was leery of political passions that he believed could divide and ultimately weaken the country, suggesting that polarization would be “a welcome sight for an alert enemy.” This made him highly protective of the institutions of government, and unwilling to damage them for short-term political expediency. “There must be respect for the Constitution — which means the Supreme Court’s interpretations — or we shall have chaos,” he wrote in a private letter to his lifelong friend Swede Hazlett a few months after Brennan’s confirmation. “This I will believe with all my heart, and shall always act accordingly.”
Whatever the immediate benefits, Eisenhower didn’t want to appoint a slew of Republican judges that would tilt the court too far in one direction. “The president said the Supreme Court belongs to all the people and that a Democrat ought to know he has a friend on the court,” said his attorney general.
This kind of long view seems lost these days, when everyone goes in for the quick win, the “nuclear option,” victory over the hated other side at all costs.
“I'm not sure that we're making any really good decisions for the long haul,” said Susan Eisenhower.
She points out that Brennan was one of five justices her grandfather appointed to the court. “Herbert Brownell, his attorney general, said pridefully that by the end of the Eisenhower administration, the federal judges that he appointed were about ideologically balanced,” she said. “That's one thing that really reminds you that, in a way, that was a different time.”
Today historians view Dwight Eisenhower as one of the top five U.S. presidents. Decisions such as this, based on the long-term health of the republic, may be one reason why.
Rick Beyer is an author, documentary producer, and co-host (with Chris Anderson) of the History Happy Hour livecast on the Stephen Ambrose Historical Tours Facebook and YouTube page.