Tom Clark under Fire: The Consequences of Congressional Investigations of Supreme Court Justices

Abstract

Tom Clark under Fire: The Consequences of Congressional Investigations of Supreme Court Justices CRAIG ALAN SMITH Introduction President Harry Truman’s nomination of Attorney General Tom Clark to the United States Supreme Court on August 2, 1949, following the unexpected death of Justice Frank Murphy, was regarded as a political appointment, one bom offriendship or loyalty rather than ability or stature. Though not a complete surprise—the Attorney General’s office was then regarded as a stepping-stone to the Court—news commentators expected Truman to choose a Catholic to replace the only Catholic Justice.1 When the United States Senate confirmed Clark’s nomination (73 to 8), Republicans cast all the “nay” votes. Opposition leader Homer Ferguson drew attention to numerous suspect instances while Clark served as Attorney General, but the most compelling reason for some Senators to vote against Clark was his failure to testify at his own confirmation hearing. Calling the nomination “transparently political,” Fergu­ son made no effort to hide his displeasure that Clark was not called for questioning, and when the Judiciary Committee approved Clark’s nomination (9 to 2) without inviting Clark to testify, the two “nay” votes princi­ pally protested his absence at the hearings. From the floor of the Senate, Robert Taft called Clark’s nomination “outrageous” because the Committee reported it favorably without Clark’s testimony.2 By the time of Clark’s nomination, a nominee’s personal appearance before the Judiciary Committee was not a wellestablished practice, but neither was it unprecedented. In 1925, Harlan Stone became the first Court nominee to testify, but the next five nominees were not invited. Not long after 140 JOURNAL OF SUPREME COURT HISTORY President Franklin Roosevelt’s failed Court “packing” plan, the Committee heard from five successive nominees, including Attor­ neys General Frank Murphy and Robert H. Jackson. Clark’s nomination, on the other hand, followed five successive nominees who were not invited, thereby blunting Taft’s charges.3 The first and only nominee (to date) to refuse to testify was Appeals Court Judge Sherman Minton, who Truman nomi­ nated shortly after Clark following the unexpected death of Justice Wiley Rutledge. As a Senator, Minton had defended Roose­ velt’s Court “packing” plan, but, as a nominee, Minton refused to testify based upon the separation ofpowers,4 a view Clark later adopted when Congress sought testimo­ ny about his work as Attorney General. Whether Clark should testify or whether he could refuse once he was on the Court became increasingly contentious for the next four years. Clark’s absence at his confirmation hearings did not halt further inquiry into his Justices Felix Frankfurter and Stanley F. Reed appeared as character witnesses at the first perjury trial of Alger Hiss (above), a former State Department employee suspected of spying for the Soviets and accused of lying in his testimony before the House Un-American Activities Committee. Frankfurter and Reed were subpoenaed to testify, but some news accounts reported that their trial appearances were voluntary, leading to congressional proposals prohibiting Supreme Court Justices from serving as character witnesses. Justice Department service. He was subjected to incessant probing by congressional com­ mittees investigating old Justice Department cases. It is doubtful any sitting Justice faced such protracted investigations oftheir off-thebench record until the failed 1968 nomination of Abe Fortas for Chief Justice and his subsequent resignation eight months later. Tom Clark endured threats ofimpeachment or requests for his resignation, demands for his testimony, and intense public scrutiny of his conduct as Attorney General. This essay examines congressional efforts to compel Clark to testify and whether his refusal based on the separation ofpowers was convincing. It highlights news coverage of these investiga­ tions and compares it to secondary historical scholarship, much of which overlooked Clark’s part in Truman administration scan­ dals or their implications for future congres­ sional inquiries of sitting Justices. On several occasions congressional committees consid­ ered or expected Clark’s testimony on matters unrelated to his judicial duties, and each time Clark avoided appearing before lawmakers. Historical circumstances made it possible for Clark to maintain the separation of powers, but questions over whether Congress could compel a Justice’s testimony or whether a...