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11 Const. Comment. 515 (1994-1995)
The Nomination of Justice Brennan: Eisenhower's Mistake: A Look at the Historical Record

handle is hein.journals/ccum11 and id is 525 raw text is: THE NOMINATION OF JUSTICE BRENNAN: EISENHOWER'S MISTAKE? A LOOK AT THE HISTORICAL RECORD Stephen J. Wermiel* The nomination of William J. Brennan, Jr. in 1956 to be an associate Justice of the U.S. Supreme Court occupies that famil- iar place in modem American legal history that is at once both a tangible event and a subject of considerable mythology and speculation. The mythology centers on several issues about the selection of Justice Brennan, including how he came to the attention of the White House, whether his mentor-the eminent legal scholar Arthur Vanderbilt-supported the choice' and whether the ap- pointment was a mistake for President Eisenhower. This article seeks to demystify the appointment of Justice Brennan by describing his selection and examining the widely circulated myths. Research for this work is based on numerous interviews with major participants in Justice Brennan's selection, including Justice Brennan himself, and on an extensive documen- tary record that has not previously been examined in full by researchers. After describing the selection and appointment of Justice Brennan, this paper concludes that, while complaints expressed by President Eisenhower about Brennan in the years after his appointment may have reflected genuine frustration with Bren- nan's liberal bent, this dissatisfaction was not reflective of the factors that influenced Eisenhower when he selected Brennan. In marked contrast to the focus of the current nomination pro- cess on judicial philosophy and changing Supreme Court out- comes, little attention was paid to the substance of Brennan's legal views at the time of his nomination. Brennan fulfilled the * Associate Professor of Law, Georgia State University College of Law. Copy- right © 1994 by Stephen J. Wermiel. The author is at work on a biography of Justice Brennan to be published by Lisa Drew Books/Scribner, and for which he has had the cooperation of Justice Brennan, his family, and his law clerks. This article was originally presented as a paper at the American Society for Legal History annual meeting in Mem- phis, Tenn., on Oct. 23, 1993.

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