The Nomination of Justice Brennan: Eisenhower's Mistake? A Look at the Historical Record

By Wermiel, Stephen J. | Constitutional Commentary, Winter 1994 | Go to article overview

The Nomination of Justice Brennan: Eisenhower's Mistake? A Look at the Historical Record


Wermiel, Stephen J., Constitutional Commentary


The nomination of William J. Brennan, Jr. in 1956 to be an associate Justice of the U.S. Supreme Court occupies that familiar place in modern American legal history that is at once both a tangible event and a subject of considerable mythology and speculation.

The mythology centers on several issues about the selection of Justice Brennan, including how he came to the attention of the White House, whether his mentor--the eminent legal scholar Arthur Vanderbilt--supported the choice, and whether the appointment was a mistake for President Eisenhower.

This article seeks to demystify the appointment of Justice Brennan by describing his selection and examining the widely circulated myths. Research for this work is based on numerous interviews with major participants in Justice Brennan's selection, including Justice Brennan himself, and on an extensive documentary record that has not previously been examined in full by researchers.

After describing the selection and appointment of Justice Brennan, this paper concludes that, while complaints expressed by President Eisenhower about Brennan in the years after his appointment may have reflected genuine frustration with Brennan's liberal bent, this dissatisfaction was not reflective of the factors that influenced Eisenhower when he selected Brennan. In marked contrast to the focus of the current nomination process on judicial philosophy and changing Supreme Court outcomes, little attention was paid to the substance of Brennan's legal views at the time of his nomination. Brennan fulfilled the specific purposes for which he was chosen: he was a Democrat, a Catholic, and a state court judge; he was comparatively young for a Supreme Court nominee; and he remained committed to reform efforts to reduce delays and backlogs in the nation's courts. All of these were important qualities for the White House, which was then little more than five weeks away from a presidential election.

I

A brief biographical sketch helps set the stage. Brennan was born in Newark in 1906, the son of Irish immigrant parents. His father was a laborer who rose in the ranks of the union to become executive of the local. Concern over the union's welfare at the hands of local officials and police prompted the elder Brennan to run for the Newark City Commission, the equivalent of the city council. A top vote-getter, the elder Brennan served as Public Safety Commissioner throughout the 1920's while his son attended the Wharton School of Finance at the University of Pennsylvania and then the Harvard Law School. Justice Brennan graduated Harvard Law in 1931, a year after his father died.

Before and after World War II, Brennan's law practice focused heavily on labor relations. The establishment Newark firm in which he practiced, Pitney, Hardin & Ward, later Pitney, Hardin, Ward & Brennan, represented management, not workers, an often uncomfortable position for Brennan.

After World War 1II Brennan became active with a group of young lawyers who were pressing for reform of the New Jersey judicial system. In 1947, New Jersey adopted a new constitution, including restructured courts; and Brennan agreed to help put the new plan into effect. He was appointed to the new superior court bench in 1949 by a Republican governor, although Brennan was a Democrat. His mentor was Arthur Vanderbilt, the nationally prominent legal figure and New Jersey Supreme Court Chief Justice for whom Brennan quickly became a trusted lieutenant and for whom Brennan led statewide efforts to eliminate congestion and long delays in the courts. For Brennan, this interest in court reform was not simply a matter of efficiency; it was directly connected to his view of the need for fairness and compassion in the law. Brennan was quickly promoted to the superior court's appellate division, and in 1952 to the New Jersey Supreme Court, where Vanderbilt was Chief Justice. There, Brennan cemented his relationship as Vanderbilt's right-hand man, no small achievement since Brennan frustrated Vanderbilt by disagreeing with him on a number of important court decisions. …

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