October 1, 1949
Supreme Court Nominees Refuse to Testify
Sherman Minton. An unfamiliar name today, perhaps, but in the fall of 1949, it was on the lips of all 96 U. S. senators.
An Indiana Democrat, Minton had won election to the Senate in 1934, joining a 13-member all-Democratic freshman class. That class included Missouri's Harry Truman, who was assigned a desk next to Minton's in the Senate Chamber. Minton rose rapidly in his Senate party's ranks. In 1937, as assistant Senate majority whip, Minton vigorously defended President Franklin Roosevelt's ill-fated legislative plan to expand the membership of the Supreme Court, packing it with liberal justices to undercut that tribunal's conservative course. He also proposed a constitutional amendment requiring a vote of seven of the nine justices to declare a federal law unconstitutional. Two years later, Senate Democrats elected the gregarious Hoosier their assistant leader. Defeated in 1940 for a second Senate term, partly because his call for American entry into World War II did not play well in isolationist Indiana, Minton worked briefly as an assistant to President Roosevelt. The president subsequently appointed him to a federal appeals court. In September 1949, President Harry Truman named his former Senate seat-mate to the Supreme Court.
When Judge Minton's nomination reached the Senate Judiciary Committee, several members recalled his earlier views on restructuring the high court. The committee decided to summon the nominee to explain his views. Minton refused. He contended that as a Senate leader in the 1930s, he had the right to advocate his party's views to the best of his ability. But, now, as a federal judge, he had moved from player to referee. The sympathetic committee then withdrew its request and the Senate quickly confirmed his appointment.
Two Senate customs, both in decline by the late 1940s, reinforced Minton's unwillingness to testify. The first was that when a senator received a presidential nomination, the Senate would immediately proceed to its consideration without referral to a committee. On Supreme Court nominations, the Senate had followed this practice, with one exception, until the late 1930s. The second custom, closely observed until 1925, held that Supreme Court nominees, regardless of their prior occupations, were not expected to testify before the Judiciary Committee.
During his seven years on the high court, Justice Minton occasionally visited the Senate floor to listen to debate. Today, he is remembered as the last member of Congress—incumbent or former—to receive a Supreme Court appointment.
Gugin, Linda C., and James E. St. Clair. Sherman Minton: New Deal Senator, Cold War Justice. Indianapolis: Indiana Historical Society, 1997.
Thorpe, James A. "The Appearance of Supreme Court Nominees Before the Senate Judiciary Committee," Journal of Public Law 18 (1969): 371-402.