I have covered Cleveland’s and Nixon’s battles on Supreme Court nominations, but a bit less known is that progressives gave President Herbert Hoover a hell of a time with two nominations: Charles Evans Hughes and John J. Parker.
Although Herbert Hoover was elected with an overwhelming vote in 1928 with support from some areas that were staunchly historically Democratic, his election didn’t resolve divides within his own party nor the Democratic opposition. Perhaps most troublesome for him was the Senate progressive wing of the Republican Party, which was keen to fight him on tariffs, veterans, and other issues. This extended to the court first when Chief Justice William Howard Taft resigned on February 3, 1930, as his health was in severe decline (he died a month later). For his replacement, Hoover picked what he surely thought was a safe and logical choice and approved by Taft…a man who had been on the court before, Charles Evans Hughes.
Charles Evans Hughes was already quite an accomplished figure by 1930, having been New York’s governor, a Supreme Court justice, and Secretary of State. However, with this level of accomplishment came age; at 67 he was the oldest man to be nominated chief justice in American history. Additionally, progressives in the Senate raised concerns about him continuing the judicial record of the Taft court, which had been striking down statutes on the grounds of “substantive due process” and it was still the Lochner Era in which the court was striking down numerous economic regulations on the grounds of “liberty of contract”, including ones that Congress had voted for overwhelmingly (the Keating-Owen Act of 1916, for instance). Hughes had also been a corporate lawyer, and this raised concerns among progressives that he would consistently rule in favor of business over labor. His opposition consisted primarily of Progressive Republicans and Southern Democrats, but it wasn’t enough. Hughes was confirmed on a vote of 52-26 on February 13th.
Three weeks after he had nominated Hughes, Hoover nominated John J. Parker after the death of Edward Terry Sanford. Parker was Chief Justice of the Fourth Circuit Court of Appeals and a prominent North Carolina Republican. North Carolina was one of the states that Hoover had won in 1928, and picking him was a way to maintain and even consolidate his Southern gains. Unlike Hughes, Parker was relatively young at 45 years old. However, he had controversies associated with being a Southern conservative. Parker had sought elected office in the state, running for Congress multiple times and for governor in 1920. The year he ran for governor against future Senator Cameron Morrison, and his Democratic opposition claimed that he would encourage black participation in politics. In response, he stated, “The participation of the Negro in politics is a source of evil and danger to both races and is not desired by the wise men in either race or by the Republican Party of North Carolina” (U.S. Senate). This line became the basis of the opposition of the NAACP to him after he didn’t respond to the organization’s inquiry on this quote. Parker would defend his remark stating, “I at no time advocated denying them (black voters) the right to participate in the election in cases where they were qualified to do so, nor did I advocate denying them any other of their rights under the constitution and laws of the United States” (Hill). Compounding his problems was a 1926 ruling in which he didn’t only uphold a yellow-dog contract, an arrangement in which as a precondition of employment a worker agrees not to join a union, he also encouraged them.
The Senators Speak Out
Senator Robert F. Wagner (D-N.Y.), who had voted for Hughes, delivered a speech in which he condemned Parker’s statement on black participation in politics as “insufferable”, which arguably gained him some Southern support. The future New Deal brain-truster also stated, “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 are with 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 restrain the strivings of others, whether they be an exploited economic group or a minority racial group” (Hill). Senator Kenneth McKellar (D-Tenn.) also delivered a speech against him which made use of a letter former Montana Governor Joseph Dixon wrote to Hoover’s secretary Walter Newton, which praised the nomination as a political masterstroke that would help open the South to Republicans. In response to these speeches conservative Republicans were apopletic, with Simeon Fess of Ohio declaring campaigns against Hughes and Parker to be the product of a “socialistic movement” but then clarified after backlash that he meant that “recent opposition has had socialistic interests at heart” rather than all opponents were socialists (Hill). Senator Daniel Hastings of Delaware alleged that there was a movement afloat to only confirm liberals and not conservatives on the court. He also stated, “I resent the effort of the laboring man to come here and undertake control the only independent body of this country. It will bring chaos. I am in favor of giving him legislation but I am not in favor of giving him legislation contrary to the Constitution” (Hill).
This was a far more contentious nomination as there were some key defections. Numerous Republican Senators who had voted for Hughes moved to opposition to Parker. Most notable were Senators Charles Deneen of Illinois, Arthur Vandenberg of Michigan, and Charles McNary of Oregon. Deneen and Vandenberg both represented states with growing black populations who made their opinions heard on Parker, and McNary would in the future be the leader of the Senate Republicans. Parker did win over a some Southerners who had voted against Hughes, such as Carter Glass of Virginia and the four senators from the Carolinas, but this wasn’t enough. Parker lost by a single vote, his nomination being defeated 39-41 on May 7th. Had one more senator voted for him, Vice President Charles Curtis could have cast the tie-breaking vote. There wasn’t any one reason that Parker lost, rather a combination of NAACP and organized labor opposition as well as senatorial dissatisfaction with how Hoover had handled the Hughes nomination. This would be the first time a justice would be defeated in a confirmation vote since President Cleveland’s double defeat of William B. Hornblower and Wheeler Hazard Peckham in 1894 and a confirmation vote would not be lost again until President Nixon’s double defeat of Clement Haynsworth in 1969 and G. Harrold Carswell in 1970.
Chief Justice Hughes would during Roosevelt Administration be a swing vote. While he did not approve of the extensive expansion of executive power Roosevelt undertook, he was also not rigid in support of “liberty of contract”, in fact, he wanted this to be phased out. Hughes ably defended the court in 1937 against Roosevelt’s efforts to pack it after the 1936 election and that year authored the opinion in West Coast Hotel v. Parrish, upholding Washington State’s minimum wage law and overruling Adkins v. Children’s Hospital (1923). Hughes would retire in 1941.
After Parker’s defeat, Hoover instead nominated Owen Roberts, one of the two men President Coolidge had put in charge of the Teapot Dome Scandal investigation, who was easily confirmed. Parker would continue a distinguished judicial career and would serve as an alternate judge for the Nuremberg Trials. His judicial record would be noted to have not shown evidence of racial bias in reasoning, indeed in several cases he struck down laws including zoning plans on grounds of discrimination. Parker also embraced post-war internationalism and went as far as to regard the Bricker Amendment as the most dangerous development since FDR’s “court-packing plan” (Fish).
Fish, P.G. (1994). Parker, John Johnston. NCPedia.
Senate Rejects Judge John J. Parker of North Carolina. U.S. Senate.
Hill, R. The Nomination of Judge John J. Parker to the Supreme Court, IV. The Knoxville Focus.