by Scott Farris
After his loss, Hughes served as secretary of state under Harding and Coolidge before being named chief justice in 1930. A strong record on civil liberties distinguished his eleven years as chief justice, and he led the court as it reviewed various legal challenges to the New Deal. The Hughes court upheld many key portions of the New Deal, but rulings striking down such initiatives as farm price controls led Franklin Roosevelt to try his foolish and unsuccessful “court packing” plan in 1938.
Hughes was instrumental in thwarting Roosevelt’s plan, and his political savvy showed the benefits that practical political experience can provide in interpreting the law. Until recently, politicians routinely served on the court. Hughes’s predecessor as chief justice had been former president Taft, and among his successors was former California governor Earl Warren. Of the 112 justices who served on the Supreme Court through 2010, nearly thirty had once served in Congress and several more had been governors. But the last justice with any experience in elected office was Sandra Day O’Connor, appointed the court’s first woman justice in 1981 and retired in 2006. She had served in the Arizona State Senate. None of the current nine justices, as of this writing, have ever held elective office and all are former appellate court judges.
It has led to concern about the lack of professional diversity on the court, which brings to mind the story of Vice President Lyndon Johnson raving to House Speaker Sam Rayburn about the brilliance and educational qualifications of John Kennedy’s aides, some of whom were helping push the United States ever more deeply into the Vietnam War. This led Rayburn to respond, “I hope you’re right, Lyndon, but I just wish one of them had ever run for county sheriff.”
Henry Julian Abraham, Justices and Presidents: A Political History of Appointments to the Supreme Court (Oxford University Press, New York and Oxford, 1992).
Merlo John Pusey, Charles Evans Hughes, Vols. 1 and 2 (Macmillan, New York, 1951).
JAMES M. COX
1920
John McCain is not the only presidential candidate who some say was upstaged by his vice presidential nominee. In 1920, Ohio governor James M. Cox was the Democratic nominee for president, and his running mate was thirty-eight-year-old Franklin Delano Roosevelt.
Roosevelt had little political experience at the time, having been a New York state senator with some reform credentials and having served as assistant secretary of the Navy during World War I. But Cox personally chose Roosevelt to be his running mate. He thought Roosevelt could help carry the battleground state of New York (he didn’t); as a member of the Wilson administration he could help unify the party (the Democrats stayed split); and the Roosevelt name would bring cachet to the campaign (the children of Theodore Roosevelt, FDR’s fifth cousin, actively campaigned for Republican nominee Warren Harding).
It was also thought that Roosevelt, like McCain’s running mate, Sarah Palin, had sex appeal. He was young, energetic, and very handsome—a great asset, it was thought, in 1920, which would be the first year when women in all states would be allowed to vote. While Roosevelt was not able to perform all the miracles that Cox had hoped he might, he was an asset to the campaign, even in a losing cause, and his future seemed limitless. Then, in August 1921, barely nine months after the election, Roosevelt contracted polio.
The 1920 presidential contest pitted two small town Ohio newspaper publishers against each other. Harding was a U.S. senator, while Cox had been a popular three-term governor. Cox established a remarkably progressive record his first term, creating workers’ compensation and a citizen referendum process, among other things, but as governor during World War I he was more conservative, cracking down on labor violence that impeded the war effort. That crackdown, plus his success in business, led conservative Ohioans to consider Cox “a ‘safe’ kind of liberal,” he said.
Cox won the Democratic nomination in 1920 after the forty-fourth ballot. The Democrats tapped Cox in part because it was clear Wilson was no longer popular and Cox’s distance from the administration was considered an asset. Then Cox surprised and appalled many Democrats when, after an emotional meeting with a very ill Wilson, he made American membership in the League of Nations the centerpiece of his campaign. Joining the league might have been a popular campaign issue in 1919; it was no longer in 1920. Americans wanted to put the tumult of the war and the Wilson years behind them and responded instead to Harding’s promise of a “return to normalcy.” Cox lost in a rout, carrying eleven Southern states and nothing else, winning only 34 percent of the popular vote to Harding’s 60 percent.
Cox had been worried his personal life would become an issue during the campaign. He was a rare divorced politician, his wife having accused Cox of mental cruelty and neglect shortly after he was elected to Congress in 1908. But Harding and the Republicans had no interest in making the candidates’ personal lives an issue; Harding himself had married a divorcée and, as few others knew, had fathered children with two other women who were not his wife.
After his defeat, Cox remained active as a party power broker but spent most of his time building up what was first a newspaper and then a multimedia empire. Still a family-owned company, what is now known as Cox Enterprises is one of the nation’s ten largest media companies whose holdings include the company’s original newspaper, the Dayton Daily News, plus the Atlanta Journal-Constitution, the Austin American-Statesman, and, as of 2011, fifteen television stations, eighty-six radio stations, and cable television and Internet service providers.
While Cox returned to the newspaper business, Roosevelt stayed in politics. He overcame his disability to become governor of New York and president of the United States—the only unsuccessful vice presidential candidate to ever win the presidency.
James M. Cox, Journey Through My Years (Mercer University Press, Macon, Ga., 2004).
David Pietrusza, 1920: The Year of the Six Presidents (Carroll and Graf, New York, 2007).
JOHN W. DAVIS
1924
The 1924 Democratic National Convention in New York City, which nominated “lawyer’s lawyer” John W. Davis after a record-breaking 103 ballots, was so arduous that Will Rogers imagined this father-son conversation: “Father, were you in the big war?” And the father would reply, “No, son, but I went through the New York convention.”
The surface argument that dominated the convention was over whether the party platform should condemn the reborn Ku Klux Klan by name. A compromise condemned all secret organizations without singling out the Klan, but the debate exposed deeper fissures within the party: urban vs. rural, North vs. South, conservative vs. progressive, Protestant vs. Catholic, and, as Prohibition was in full swing, “Drys” vs. “Wets.”
Davis, a former West Virginia congressman, was a long shot among the nineteen men nominated until it was clear no candidate had a prayer of getting the two-thirds vote necessary to win. As balloting wore on, Davis’s appeal grew because he had progressive credentials, having been Wilson’s solicitor general and ambassador to Great Britain, and conservative credentials as a Wall Street attorney and counsel for J. P. Morgan.
Davis understood his nomination was “an empty honor.” The party was split, the nation was prosperous under Republican Calvin Coolidge’s administration, and Davis was saddled with William Jennings Bryan’s brother, Charles, as his running mate, an accommodation that cost him a good deal of the Catholic vote. Still, Davis ran an honorable campaign, repeatedly condemning the Klan by name. But with Progressive Wisconsin senator Robert LaFollette in the race as a third party candidate, Davis ended up receiving less than 29 percent of the popular vote, the second-lowest total for a major party candidate, after William Howard Taft’s 23 percent in 1912.
So Davis returned to his pride and joy, the law, becoming known as the greatest legal advocate in American history. He made oral arguments before the U.S. Supreme Court 140 times—more than anyone since Daniel Webster—and justices such as Oliver W
endell Holmes and Hugo Black praised him as the most persuasive advocate they had ever heard.
Asked to explain Davis’s greatness as a lawyer, a contemporary noted his courtesy, his dignified, commanding appearance, confidence, and perfect diction. He made forceful, logical arguments, never making emotional appeals to win over judge or jury. He was so revered that future Supreme Court justice Thurgood Marshall claimed that he tried to emulate Davis and did so most effectively when he opposed Davis as counsel in the most celebrated Supreme Court case of the twentieth century.
Davis often represented the underdog, defending a conscientious objector during World War II, and arguing successfully that President Harry Truman had no right to nationalize the steel industry to prevent a strike. But he also represented, without fee, the State of South Carolina when it was sued, along with school districts in Virginia and Kansas, by African-American parents who were challenging the “separate but equal” standard for public schools that the Supreme Court had established in Plessy v. Ferguson in 1896. Because of a quirk in the chronology of when the several lawsuits were filed, the new case demanding desegregation of the public schools was known as Brown v. Board of Education of Topeka.
While Davis was not a virulent racist, he ridiculed the notion that segregation harmed black children and believed both races were better off separated. Davis was certain precedent was on his side; Marshall agreed, but he also understood that in order to reverse settled law a lawyer needed to “convince both [the justice’s] . . . mind and his emotions.” To argue the law was unchangeable, legal scholar Alexander Bickel observed, “was to deny the essence of the Court’s function.”
Having already struck down segregation in housing, public transportation, and higher education, the court now unanimously struck it down in the most emotionally laden venue possible: public schools. Davis at first predicted turmoil, and there was some of that, but upon reflection he later decided that if the court were to order such a sea change, he was glad it was on a unanimous decision. It was a rare loss for America’s greatest attorney, but a loss that served the cause of equal rights.
William H. Harbaugh, Lawyer’s Lawyer: The Life of John W. Davis (Oxford University Press, New York, 1973).
ALFRED M. LANDON
1936
Many people believed that Kansas Republican governor Alfred M. Landon would defeat Democratic president Franklin Roosevelt in a landslide in 1936. They really did. They based that belief, at least in part, on the Literary Digest, which had surveyed millions of Americans and predicted in its October 1936 issue that Landon would win by a 57 to 43 percent tally.
A young pollster just starting out named George Gallup had also done a survey, but with a much smaller, random sample, and he predicted Roosevelt, not Landon, would win in a landslide. People laughed at Gallup. After all, the Digest had, as its editors proudly noted, “been right in every Poll” since 1916. The Digest had mailed its survey to more than ten million Americans whose names were drawn from lists of automobile and telephone owners. An extraordinary 2.3 million people responded to the survey, an extremely large sample, especially compared to Gallup’s sampling of fifty thousand.
The problem with the Digest sample was that automobile and telephone owners in 1936 were the well-to-do, and the country was still in the grips of the Great Depression. The wealthy were more likely to vote Republican. Further, the Digest depended upon a voluntary response, which increased the bias because those angry at the status quo have a greater incentive to respond. The angry turned out to be in the minority.
Landon, an oil man who had served two terms as an effective progressive governor, ended up winning only two states, Vermont and Maine. He believed many New Deal programs were poorly executed and wasteful but supported their and Roosevelt’s aims. While surrogates charged FDR was leading the nation into socialism, Landon said, “I do not believe the Jeffersonian theory that ‘the best government is the one that governs the least’ can be applied today.” He was therefore criticized for a lack of passion and for a lack of effort on the campaign trail. Landon later looked at the results, with Roosevelt winning nearly 61 percent of the vote, and countered, “I don’t think that it would have made any difference what kind of a campaign I made. . . . That is one consolation you get out of a good licking.”
Landon never ran for office again but remained a progressive voice in the Republican Party, later endorsing portions of Lyndon Johnson’s “Great Society,” particularly Medicare. Known as the “Grand Old Man of the Grand Old Party,” Landon lived to be one hundred, old enough to enjoy watching his daughter, Nancy Landon Kassebaum, be elected to the U.S. Senate in 1978.
Meanwhile, Americans still argue over polls, baffled that a sample of as few as five hundred voters can usually accurately predict a presidential election and wondering when a new development, such as the failure to poll people with only cell phones and not landlines, will cause some pollster today to suffer the humiliation the Literary Digest felt in 1936. The Digest, by the way, failed in 1938 after nearly fifty years in business.
Donald R. McCoy, Landon of Kansas (University of Nebraska Press, Lincoln, 1966).
WENDELL WILLKIE
1940
In his novel, The Plot against America, Philip Roth paints a frightening portrait of what might have happened had America elected an isolationist for president in 1940. In the novel, the president is Charles Lindbergh, who is unrealistically portrayed as a Nazi sympathizer. In reality, there were no men running for president in 1940 who sympathized with the Nazis. But there were men intent upon taking decisive steps to keep America out of the growing war in Europe—men thwarted by Wendell Willkie’s improbable capture of the Republican presidential nomination, an event that newspaper columnist Walter Lippmann called “the decisive event, perhaps providential,” in ensuring an Allied victory in World War II.
This mildly extravagant claim is based on the key support Willkie gave President Franklin Roosevelt’s relatively modest preparations for American entry into World War II. Several of Willkie’s primary opponents, including Robert Taft and Arthur Vandenberg, were determined, at least before Pearl Harbor, to not only prevent American entry into the war, but also to block any assistance FDR intended to provide Great Britain and other allies in the fight against fascism.
The Republicans’ nomination of Willkie was improbable because he had never run for any elected office before, he was virtually unknown outside the business community, and, until 1938, he had been a registered Democrat! But Willkie had gained Republican admirers through his strong but thoughtful critiques of the New Deal. Willkie, an attorney who had risen to become president of utility giant Commonwealth and Southern Corporation, was particularly critical of the Tennessee Valley Authority and won impressive concessions from the Roosevelt administration, protecting Commonwealth and Southern’s shareholders.
Willkie also had a magnetic personality. A large bear of a man who had sophisticated tastes, he nonetheless liked to play the part of the Indiana country boy, which led Roosevelt’s curmudgeonly secretary of the interior Harold Ickes to memorably label Willkie “a simple, barefoot, Wall Street lawyer.” Still, a survey taken in April 1940, just six weeks prior to the Republican National Convention, found that only 15 percent of the American people knew who Willkie was.
But the week the GOP convention was held was also the week France fell to German troops. Suddenly, the isolationists’ stock fell, too, and delegates yielded to the packed galleries that incessantly screamed, “We want Willkie!” Willkie won on the fifth ballot and undertook a memorably vigorous campaign that still failed to deny Roosevelt an unprecedented third term.
Roosevelt liked and admired Willkie and was determined to enlist his help in ending American neutrality. Shortly after the election, Roosevelt sent Willkie to Great Britain as a symbol of American unity and then called Willkie back to testify before Congress on behalf of the proposed “Lend-L
ease Act.” Willkie’s riveting testimony was crucial to the passage of legislation that allowed Britain to fight on. Later, Willkie used his prestige to persuade Congress to maintain the military draft, which Congress came within one vote of ending six months before Pearl Harbor.
Returning from a world tour in 1943, Willkie wrote the influential best-selling book, One World, which argued for creation of a United Nations. Roosevelt allegedly tried to persuade Willkie to return to the Democratic Party and be his running mate in 1944. Whether Roosevelt was serious or simply toying with Willkie and the Republicans remains a matter of debate. Willkie was still weighing his political options when he died unexpectedly of a heart attack in October 1944.
Conservative Republicans were furious at Willkie’s hijacking of the party and his alliance with Roosevelt. One disillusioned follower was the objectivist novelist Ayn Rand, who said Willkie was “the guiltiest man of any for destroying America, more guilty than Roosevelt.” Far more believed he helped prepare America for the fight that destroyed fascism.
Mary Earhart Dillon, Wendell Willkie: 1892–1944 (J. B. Lippincott Company, Philadelphia and New York, 1952).
James H. Madison, ed., Wendell Willkie: Hoosier Internationalist (Indiana University Press, Bloomington and Indianapolis, 1992).
Steve Neal, Dark Horse: A Biography of Wendell Willkie (Doubleday and Company, Inc., Garden City, N.Y., 1984).
Charles Peters, Five Days in Philadelphia: 1940, Wendell Willkie, and the Political Convention That Freed FDR to Win World War II (Public Affairs, New York, 2005).