President Obama’s “empathy” standard for choosing judges is not altogether new. In 1902, facing his first Supreme Court vacancy, President Theodore Roosevelt expressed a similar standard when he appointed Oliver Wendell Holmes. He told Senator Henry Cabot Lodge, “The ablest lawyers and greatest judges are men whose past has naturally brought them into close relationship with the wealthiest and most powerful clients, and I am glad when I can find a judge who has been able to preserve his aloofness of mind so as to keep his broad humanity of feeling and his sympathy for the class from which he has not drawn his clients. I think it eminently desirable that our Supreme Court should show in unmistakable fashion their entire sympathy with all proper effort to secure the most favorable possible consideration for the men who most need that consideration.”
Roosevelt particularly liked Holmes’ opinions in labor cases, for he expressed more sympathy for labor unions than most judges of his day. But TR was mostly interested in Holmes’ views on the emerging American empire. Shortly after the Spanish-American War, President Theodore Roosevelt was concerned that the Supreme Court might insist that all constitutional guarantees extended to our newly-acquired empire—in popular parlance, that “the Constitution follows the flag.” In 1902, TR sought and obtained a pledge from Holmes that he would not apply this standard. Holmes then lied to the press about his secret meeting with the President. He dutifully voted with the majority in the so-called Insular Cases, which held, for example that the right to a jury trial did not extend to Filipinos or Hawaiians.
Holmes became a hero to progressives and liberals first for his 1880 book, The Common Law. His approach to the law here stressed its evolutionary, developmental adaptability. Later theories of the “living constitution” often derive from Holmes. His most celebrated opinion came in 1905, when he dissented in Lochner v. New York. Here the Supreme Court overturned a state law that limited the hours that bakers could work, long regarded as the apex of “laissez-faire jurisprudence.” “This case is decided upon an economic theory which a large part of the country does not entertain,” Holmes quipped. “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” referring to a prominent Social Darwinist of the day. But even more amusing was the fact that Holmes himself was the only real Darwinist on the Court.
Al Alschuler, in his superb biography, Law Without Values, concluded, “The real Holmes was savage, harsh, and cruel, a bitter and lifelong pessimist who saw in the course of human life nothing but a continuing struggle in which the rich and powerful impose their will on the poor and weak.” “Holmes had a brutal worldview and was indifferent to the welfare of others.” He “sneered at all political and moral causes except eugenics, which he supported in an especially chilling form by advocating the execution of ‘everyone below standard.’”
In 1927, Holmes wrote the opinion in Buck v. Bell, which upheld the compulsory sterilization laws of the states, which ultimately resulted in the sterilization of about sixty thousand Americans. “We have seen more than once that the public welfare may call upon the best citizens for their lives,” wrote the thrice-wounded Civil War veteran. “It would be strange if it could not call upon those who already sap the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” In another pithy aphorism, he concluded, “Three generations of imbeciles are enough.” As cruel as this opinion was, it was toned down from an even harsher version at the behest of Chief Justice Taft.
For most of his career, Holmes really didn’t believe that there were any constitutional limits at all to government power. He advocated the complete separation of law and morality, writing, “I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether,” he wrote, “and other words adopted which should convey legal ideas uncolored by anything outside the law.” He continued, “Manifestly… nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law.” Essentially, he thought that the majority had the power to impose its will on the minority, for good or ill. In 1873 he wrote that “It is no sufficient condemnation of legislation that it favors one class at the expense of another, for much or all legislation does that…. Legislation is necessarily a means by which a body, having the power, puts burdens which are disagreeable to them on the shoulders of somebody else.” Holmes himself confessed in 1919 that he had come “devilish near to believing that ‘might makes right.’” After the Second World War had shown the danger of such theories of unlimited governmental power, one law professor entitled an article “Hobbes, Holmes, and Hitler.”
Self-righteous progressives also abused many good judges whom they incorrectly believed did not meet their “empathy” standard. In 1930 Judge John J. Parker was effectively “borked” by New York Senator Robert F. Wagner. When Hoover nominated Parker, a North Carolina appellate court justice, labor and civil rights organizations lined up against him. The American Federation of Labor (AFL) opposed him because he had upheld lower-court injunctions that prevented the United Mine Workers from trying to organize workers who had signed “yellow-dog contracts”—agreements not to join a union—in the 1927 Red Jacket case. The National Association for the Advancement of Colored People (NAACP) attacked Parker because he had endorsed black disfranchisement in a 1920 gubernatorial campaign.
Wagner said, “I see a deep and fundamental consistency between Judge Parker’s views of labor relations and his reported attitude toward the colored people of the United States. They both spring from a single trait of character. Judged by the available record, he is obviously incapable of viewing with sympathy the aspirations of those who are aiming for a higher and better place in the world. His sympathies naturally flow out to those who are already on top, and he has used the authority of his office and the influence of his opinion to keep them on top and to restrain the strivings of the others, whether they be an exploited economic group or a minority racial group.”
As a cheap personal and psychological smear, this outdoes even Ted Kennedy on Robert Bork. Parker’s genuine working-class background and disdain for artificial privilege made it especially perverse. Moreover, the politics behind it were altogether fanciful. The AFL and NAACP did not work together to defeat Parker. Organized labor and blacks were extremely hostile to one another in the 1920s. AFL president William Green went out of his way to avoid being associated with NAACP president Walter White when they testified against Parker. And black organizations did not support the AFL’s campaign against labor injunctions. W. E. B. Du Bois, among the black leaders most sympathetic to organized labor, wrote, “this power of injunction has been used, not simply to protect capitalists and employers, it has been used to protect minority groups of employees against whom union labor discriminates. This is true especially of Negroes.”
Wagner was not alone in borking Judge Parker. Senate Judiciary Committee chairman George W. Norris added, “I want to see men put on the Supreme Court who have modern ideas and who are not so encrusted with ancient theories which existed in barbarous times that they are going to inflict human slavery on us now.” When Parker’s Senate supporters asked that the judge be permitted to appear before the committee to respond to his detractors, Norris refused.
The sharp-tongued Nebraska demagogue had also opposed Calvin Coolidge’s appointment of Harlan F. Stone in 1925, calling him a tool of Wall Street. He apologized for this after Stone “grew” into a reliable liberal. Norris voted to confirm when FDR elevated Stone to the chief justiceship.
To their credit, though, Parker’s opponents let the nomination go to the full Senate, even after the Judiciary Committee recommended his rejection. He was defeated on the floor by one vote. The Parker defeat seemed to have tremendous consequences. His seat was taken by Owen Roberts, who was the crucial swing vote that upheld New Deal legislation, including the Wagner Act.
But Parker might have grown to the left as well. In his 1946 eulogy to Stone, Parker called the idea that judges should be bound by the text of the Constitution, or adhere to the original intent of its framers and ratifiers, “delusions.”
Parker compiled a progressive record in his twenty-eight remaining years on the circuit court. He upheld New Deal legislation, and was temporarily reversed by a more conservative Supreme Court, including Roberts. He boldly (and uncharacteristically) ignored Supreme Court precedent in overturning Pennsylvania’s compulsory flag-salute law during World War II; the high court subsequently reversed itself and endorsed Parker’s civil-libertarian view. He rendered several decisions to uphold black voting rights, foiling South Carolina’s effort to limit primary voting to whites. After attempting to equalize spending on segregated schools, he accepted the Supreme Court’s Brown ruling. Parker also interpreted Brown as a requirement of desegregation, not integration—a dictum that held until the late 1960s.
Some borkers had consciences in the 1930s. Several senators, and FDR himself, later admitted that Parker had been treated unfairly. Some wanted an opportunity to right the wrong, but Parker was passed over for subsequent vacancies. Nobody knows how Parker might have developed as a Supreme Court Justice but, like Clement Haynesworrth and Robert Bork, he certainly didn’t deserve the malign treatment that he got.
TR’s cousin, FDR, also purported to adopt an “empathy” standard when appointing judges. He wrote to an adviser in 1936, “Dig me up fifteen or twenty youthful Lincolns from Manhattan and the Bronx. Thy must be liberal from belief and not by lip service… They must know what life in a tenement means.”
FDR’s first appointee to the Court was Hugo Black, who had a life membership in the Ku Klux Klan. His third choice was William O. Douglas. As Justice Richard Posner describes Bruce Allen Murphy’s excellent biography, Wild Bill, “Douglas turned out to be a liar to rival Baron Munchausen, and a great deal o0f patient digging was required to reconstruct his true life story. One of his typical lies, not only repeated in a judicial opinion but inscribed on his tombstone in Arlington National Cemetery, was that he had been a soldier in World War I. Douglas was never in the Armed Forces. The lie metastasized: a book about Arlington National Cemetery, published in 1986, reports: ‘Refusing to allow his polio to keep him from fighting for his nation during World War I, Douglas enlisted in the United States Army and fought in Europe.’ He never had polio, either.
“Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice who regularly left the Court for his summer vacation weeks before the term ended. Rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed, and devoured by ambition, he was also financially reckless--at once a big spender, a tightwad, and a sponge--who, while he was serving as a justice, received a substantial salary from a foundation established and controlled by a shady Las Vegas businessman.
“For at least a decade before he was felled in 1974 by the massive stroke that forced his retirement from the Court a year later, Douglas (perhaps as a consequence of his heavy drinking) had been deteriorating morally and psychologically from an already low level. The deterioration manifested itself in paranoid delusions, senile rages and sulks, sadistic treatment of his staff to the point where his law clerks--whom he described as ‘the lowest form of human life’--took to calling him ‘shithead’ behind his back, and increasingly bizarre behavior toward women, which included an assault in his office on an airline stewardess who had unsuspectingly accepted an invitation from this kindly seeming old man to visit him there.”
We can hope that President Obama has better luck choosing justices by the standard of “empathy.” But it would be better still if he found some other standard.