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The Brennan Appointment

Brass Tacks

By Robert H. Newman

William J. Brennan was not alone in his surprise at being appointed to the Supreme Court on October first. Throughout the nation, members of the legal profession probed their memories to recall him, and the few who remembered him still asked, "Why Brennan?"

The puzzlement was not without some justification. It was generally known that several other prominent jurists, lawyers, and men of affairs were being considered by the President to fill the seat on the High Court being vacated by Sherman Minton. Among them were Thomas E. Dewey, Chief Justice Vanderbilt of the New Jersey Supreme Court, and Herbert Brownell. But Eisenhower finally selected a relatively unknown and young (fifty years) justice from New Jersey.

Brennan, a graduate of the Wharton School in '29 and Harvard Law three years later, practiced law from the Depression until the outbreak of the War, when he entered the Army Ordinance Corps. He emerged with the rank of Colonel in 1945. At the War's end Brennan resumed his practice, and in 1949 was appointed to the Superior Court of New Jersey, on which he sat until 1953, when he was elevated to the New Jersey Supreme Court. In his judicial capacity Brennan delivered no outstanding decisions, but did help in alleviating the calendar congestion in the state's courts.

With this commendable but undistinguished background, it is understandable why there were eyebrows raised when the news of Brennan's elevation to the nation's highest tribunal appeared. The Justice admits having friends on the administration: Secretary of Labor Mitchell, Presidential Secretary Bernard Shanley (whom Brennan considers "an intimate"), and Deputy Attorney General William P. Rogers, among the most prominent. But their recommendation, along with an admittedly helpful laudatory letter from Justice Arthur T. Vanderbilt of New Jersey, cannot account entirely for the President's choice.

Justice Brennan is a lifelong Democrat and a Catholic, two facts which all concerned deny had any influence upon the President. But surely these are considerations from which the President might make political capital. Aside from Mr. Eisenhower's intentions, however, his choice and especially its timing is questionable.

It has never been considered advantageous for a President to create a recess appointment to the Court, that is, to appoint a Justice to fill a place on the Court before the Senate can give its assent in January. Such an act enables a Justice who may not be confirmed by the Senate to participate in vital decisions. The difficulty is compounded in an election year, for should Stevenson win, he is immediately subject to the obvious pressure of allowing Brennan to remain on the bench. Although Brennan is a Democrat, he was, according to legal sources, probably not Stevenson's first choice for the job.

The President in choosing Brennan as a recess appointment in an election year seems to be assuming his own victory in November. He could have--and should have--left the seat vacant, for the winner of the election to fill at his discretion. Should Mr. Stevenson win, he will inherit an awkward problem from Mr. Eisenhower.

Nevertheless, on Monday, October 15, William J. Brennan, whom one friend describes as "the friendly Irish type, dapper and jaunty" will take his place with the eight other "Old Men." Although the motives behind his appointment and the timing and wisdom of the appointment itself remain somewhat of a mystery, it must nevertheless be hoped that the new Justice will fill the shoes of Sherman Minton.

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