During his three plus terms as President of the United States, Franklin D. Roosevelt appointed a grand total of 193 judges to the federal bench. This figure was more than twice the number of the previous record of 79, held by Calvin Coolidge. I did a bit of research into the breakdown of the 193 and learned that between 1933 and 1944, FDR appointed:
- 8 Justices to the Supreme Court;
- 51 Judges to the United States Court of Appeals;
- 134 Judges to the United States District Courts, and
- Elevated one Associate Supreme Court Justice (Harlan Fiske Stone) to Chief Justice.
In doing my research, I was amazed to learn that eight of these jurists served on the bench until the 1980s. Among them were:
- Supreme Court Justice Stanley Forman Reed (1884-1980), who was appointed 1938, served as a Senior Justice until April 2, 1980;
- Supreme Court Justice William O. Douglas (1898-1980), who was appointed in 1939, served as a Senior Justice until January 19, 1980;
- Third District Judge Albert Branson Maris (1893-1989), who received his appointment in 1938, served as a Senior Judge until February 7, 1989;
- Federal District Judge Marion Speed Boyd (1900-1988), who took his seat in September 1940, stayed on as Senior Judge until January 9, 1988.
- Federal District Judge Stephen Sanders Chandler, Jr. (1899-1988), who took his seat in May 1943, stayed on as Senior Judge until April 27, 1989.
- Federal District Judge William Joseph Campbell (1905-1988), who took his seat in May 1943, stayed on as Senior Judge until October 19, 1988.
- Federal District Judge Charles Edward Wyzanski, Jr. (1906-1986), who took his seat in December 1941, stayed on as Senior Judge until September 3, 1986.
Moreover, an additional 33 Roosevelt appointees continued serving as Senior Judges into the 1970s.
In other words, one in five of FDR's appointees, who took their seats during the days of Brandeis, Frankfurter and Cardozo, were still exercising judicial influence up until the time of Berger, Blackmun and Rehnquist. And of these, eight were still serving in senior capacities contemporaneously with Kennedy, Scalia, and O'Connor -- nearly a half-century after FDR's death.
Talk about immortality!
Today's Supreme Court is, without question, the most conservative since the anti-New Deal court of the early FDR years. According to an exhaustive study by University of Chicago legal scholars William M. Landes and Richard A. Posner, five of the ten most conservative Supreme Court justices of the past 70 years -- with Clarence Thomas being ranked "most conservative" -- are currently occupying seats on the high court. Moreover, of the five (Thomas, Alito, Roberts, Scalia, and Kennedy) the first three are, from a point of judicial tenure, barely middle age; Thomas is 65, Alito, 62 and Roberts only 57. By comparison, two of the four liberal justices -- Ginsburg and Breyer -- are, respectively 79 and 74, and likely to be the next to announce their retirements.
If the history noted at the beginning of this piece is any indicator, whoever replaces Ginsburg and Breyer could easily still be wielding a gavel in 2050 . . . or beyond. And depending on who occupies the Oval Office beginning this coming January, the SCOTUS would likely be locked onto either a deeply conservative or reasonably progressive path for the next two generations or more. Considering the many critical issues that will likely be heading to the Court in the near and proximal future -- everything from abortion and public tax dollars for private education to voter i.d. laws and the reevaluation of Citizens United v FEC -- the long-term makeup of that court is going to be absolutely crucial.
Over the past several weeks, I have stressed this issue in a number of lectures and speeches; of how, through judicial appointments, a president can continue to exercise tremendous influence long after he has left office. On several occasions, people have come up to me and voiced the thought that in times of joblessness and economic malaise, they simply cannot be overly concerned with who a president will nominate for the bench. I tell them, as diplomatically as possible, that I couldn't disagree with them more; that who the president will appoint to the Supreme Court -- or the District Court or Federal Court of Appeals -- in the next four years, will, to a great extent, determine what kind of country we are going to have for the next 50 years or more.
If we are to take President Obama and Governor Romney at their word on issues ranging from abortion and immigration to collective bargaining rights and the role of religion in American civil life (and I see no reason not to) then, it seems to me, the choice is clear: Barack Obama.
I for one will feel far more comfortable knowing that Barack Obama's judicial appointments will still be on the bench when I turn 100. That is the kind of immortality we can live with.
Let Mitt Romney earn his immortality through his church.
-2012 Kurt F. Stone