FDR eventually nominated Felix Frankfurter, Harvard Law professor and New Deal workhorse, to fill the Supreme Court vacancy created by Benjamin Cardozo’s death in July 1938. For his proximity to the president, involvement in the drafting of legislation, and patronage of brilliant young public lawyers, Fortune magazine had labeled him “the single most influential individual in the United States.” He was poised to ascend to the Bench; Roosevelt had told him as much. But the Court was now composed entirely of Easterners. Frankfurter’s chance would come, but it most certainly wouldn’t be now.
Likely at Frankfurter’s behest, several of FDR’s most powerful advisers defied the president’s resolve and championed Frankfurter’s candidacy, anyway. Robert Jackson (not yet a justice), Harold Ickes, Harry Hopkins, George Norris, and Justice Harlan Stone all implored FDR to name Frankfurter—who else had the intellectual firepower to go head-to-head with Hughes in conference?
Six months after Cardozo’s death, FDR finally relented. Frankfurter later recalled that FDR called him at his home at 7 P.M. on January 4, 1939. Frankfurter answered the phone in his underwear, and he was in a hurry to greet a dinner guest downstairs (fully clothed, one hopes). FDR sadistically reminded Frankfurter that “I told you I don’t want to appoint you to the Supreme Court of the United States. . . . I mean this. I mean this. I don’t want to appoint you to the Supreme Court. . . . I just don’t want to appoint you. . . . I told you I can’t name you. . . . But wherever I turn, wherever I turn and to whomever I talk that matters to me, I am made to realize that you are the only person fit to succeed Holmes and Cardozo. Unless you give me an insurmountable objection I’m going to send your name in for the Court tomorrow at twelve o’clock.” The astounded Frankfurter’s reply? “All I can say is that I wish my mother were alive.”
Here’s a picture of Frankfurter’s Supreme Court nomination. It was FDR’s first nomination of any kind for the 76th Congress, 1st Session. He wrote in all of the non-printed details himself:
The Senate decided to hold hearings on Frankfurter’s nomination, a rare event in those days. He dispatched his good friend Dean Acheson to the Hill, but after the Senate heard testimony from “a strange assortment of crackpot crusaders, Fascists, professional Jew haters, and others” (the New Yorker‘s description), Frankfurter grudgingly decided to make a personal appearance. He secured a unanimous confirmation with his rousing response to Senator Pat McCarran’s insinuation that he might be a closet communist: “Senator, I do not believe you have ever taken an oath to support the Constitution of the United States with fewer reservations than I have or would now, nor do I believe you are more attached to the theories and practices of Americanism than I am. I rest my answer on that statement.”
(As I usually do with my posts about Supreme Court nominations, I’ve drawn most of the above information from Henry Abraham’s Justices, Presidents, and Senators.)