APROPOS of the nomination of David Souter...


APROPOS of the nomination of David Souter to the Supreme Court, Edward B. Sandler wrote in to ask:

"How many bachelors have sat on the Supreme Court? How many appointees have disappointed their president -- how many Warrens and Brennans?"

First question. That's easy to answer. Only five of the 103 men and one woman justices were bachelors. The five were William Henry Moody, James McReynolds, John Herrin Clarke, Benjamin Cardozo and Francis Murphy. You could look it up in Congressional Quarterly's "Guide to the U.S. Supreme Court," the standard reference work.

Twenty-nine of the nation's justices had more than one spouse. One had three. That was Salmon P. Chase. One had four. That was William O. Douglas.

Second question. Many, many justices disappointed the presidents who nominated them. Presidential literature is studded with quotes from presidents to the effect that this or that justice did not vote and write on the court the way the president had expected.

But there are two reasons you can't be precise about "how many?" One is that not every president wrote or was quoted on the matter. Another is that not all quotes are believable.

Regarding the latter, there is no more widely circulated quote in this field than President Eisenhower's answer when asked if he made any mistakes while president: "Yes, two, and they are both sitting on the Supreme Court." He was said to be referring to Chief Justice Earl Warren and Justice William Brennan.

Both turned out to be more liberal than Ike expected. But there is no known record of his having said that. The Eisenhower Library says it can't verify the quote. Fred Greenstein of Princeton, an Eisenhower expert, says he's never seen it in writing.

What explains the widespread belief that he said it? Well, an Eisenhower biographer recounted a conversation between Ike and a Republican leader in which he is supposed to have said something to that effect. Another writer, in updating his own book about presidents and the Supreme Court used that source and made Ike's statement a direct quote. This was then included in the above-mentioned Congressional Quarterly's "Guide. . ." -- with a footnote! Everybody always believes footnoted items, so the story became gospel.

I myself -- the nation's best known expert on this sort of thing* -- used to refer to the quote. I don't anymore for two reasons. One, I suspect it is not valid. And two, I have a better quote. For his "Eisenhower The President," Stephen Ambrose interviewed Ike. He asked him what his biggest mistake was. Ike replied, "the appointment of that dumb son of a bitch Earl Warren." Now, Steve is an old Hopkins and Sunpapers man, so you know it's true.**



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