John J. Parker and the Beginning of the Modern Confirmation Process

Abstract

John J. Parker and the Beginning of the Modern Confirmation Process ERNESTO J. SANCHEZ* Ideological concerns’ dominance ofthe Supreme Court confirmation process has certainly become routine, especially in the form ofissue-driven interest groups’ influence over the agenda for Senate debates. More significantly, the Senate normally focuses on what Laurence Tribe has called “the net impact ofadding [a] candidate to the Court”1 interms ofsteering the Courttoward adherence to a particular judicial philosophy, such as originalism2 or pragmatism,3 or toward a specific outlook on a given constitutional issue. And when the President nominates someone with priorjudicial experience, the candidate’s decisions, as well as his or her prior speeches or other public activities, become fair game as supposed indications ofhis or her fitness for service on the Court. This article tells the story ofthe first such confirmation controversy that resulted in the Senate’s rejection of a Supreme Court nom­ inee. President Herbert Hoover’s nomination ofFourth Circuit Court ofAppeals Judge John J. Parker to the Court in 1930 prompted un­ precedented opposition that extended beyond traditional party lines and concerns over basic competence to single-issue agendas. Almost immediately, the National Association for the Advancement of Colored People (NAACP), onlytwenty-two years old, launched a lobbying campaign against Judge Parker because of a purportedlyracist statement he had made asthe Republican candidate for governor of North Carolina in 1920. The American Federation of Labor (AFL) initiated an equally virulent movement against the judge because of one prior decision in which he had upheld a com­ pany’s “yellow dog” contracts, or agreements by the company’s workers not to join unions. A closer analysis of the Parker contro­ versy, however, reveals its parallels to contem­ porary disagreements over presidential nom­ inations to both the Supreme Court and, more recently, lower federal courts. Reflect­ ing Tribe’s assessment, a central issue un­ derlying the dispute was not Parker himself, but the course the Court would follow in resolving a seminal legal issue: Congress’s ability to pass legislation to rebuild the col­ lapsed American economy in the wake of the BEGINNING OF THE MODERN CONFIRMATION PROCESS 23 Court’s invalidation of many such laws with that same intent.4 A secondary question in­ volvedthe degree to which the Court would ex­ amine the constitutionality ofstate “Jim Crow” laws, the reason for the NAACP’s involve­ ment in the Parker debate. And in the form of modern controversies over whether a nom­ inee will, for example, vote to overturn Roe v. Wade, Judge Parker’s opponents felt that only a personally like-minded Justice could en­ sure their desired outcome in labor and civil rights cases. Thus, just as in some modern judicial confirmation battles, which Supreme Court scholar Henry Abraham has likened to “emotion-packed, politicized drama[s],”5 the Parker episode involved misrepresentations of the judge’s record and apparently groundless accusations for the sake of achieving specific agendas. Of course, one might argue that this trend toward ideologically oriented confirma­ tion processes with a level of discourse equal to that of a crass political campaign instead commenced with Woodrow Wilson’s nomi­ nation of Louis D. Brandeis to the Court in 1916. Numerous business interests, angered by Brandeis’s support of such causes as trade union rights and antitrust regulation, pres­ sured Senators to oppose a nomination that was to guarantee one more Court vote in fa­ vor of the Wilson administration’s generally progressive economic program.6 But the fact that the Parker controversy constituted the first time the Senate actually rejected a Supreme Court nominee under such politically charged circumstances—albeit a nominee who would likely have differed from Brandeis philosoph­ ically as a Supreme Court Justice—arguably makes it, rather than earlier confirmation bat­ tles, the definitive event that set forth the overall thematic context underlying the con­ temporary judicial nomination scene.7 Criticism by the NAACP helped torpedo Judge John Parker’s nomination to the Supreme Court, but the alle­ gations against the moderate Southerner focused on a single racist remark he made during an unsuccessful gubernatorial campaign in 1920. Above, NAACP members picketed the practice of lynching, an underprose­ cuted crime in many...