Special Report

Two Presidents and the Court: When Bigotry Takes the Bench

Obama names Sotomayor to seat held by racist Woodrow Wilson appointee.

By 7.14.09

Send to Kindle

Talk about a symbol.

In a surely unintended bit of symbolism, Judge Sonia Sotomayor, accused of racism, has been named to the Supreme Court seat once held by one of the Court's most fervid racists: Woodrow Wilson appointee James McReynolds.

McReynolds' vividly racist 27-year tenure from 1914 to 1941, obscured by time, has resurfaced in a fashion that can only be less than helpful to Team Obama as Sotomayor's nomination faces Senate confirmation. Why? It forces everyone to focus on two very real questions as this nomination moves forward this week.

First: What does the Sotomayor nomination say about Obama? And second: will Sotomayor deliver what the President expects of her if seated on the Court?

Here's the McReynolds story.

The place: The United States Supreme Court.

The occasion: oral arguments in what would turn out to be the first crack in a famous Supreme Court precedent.

Arrayed behind the raised bench, the nine Justices peer down from their lofty, high-backed leather chairs, their black robes distinct against crimson drapes trimmed with gold. 

Rising to his feet to begin his presentation is attorney Charles Hamilton Houston. Houston is one of America's more brilliant members of the bar. Educated at Amherst College, where he was the class valedictorian, he had gone on to graduate cum laude from Harvard Law School, where he served on the law review. Today, the historic courtroom is hushed, with all eyes on Houston as he begins to speak.

Suddenly, silently, without a word, there is movement from the bench.

Justice James Clark McReynolds swivels his chair, turning it around 180 degrees. And keeps it that way. There is a moment of stunned silence as the recognition dawns on McReynolds's fellow Justices, headed by Chief Justice Charles Evans Hughes. So too is there a jaw-dropping understanding in the rest of the ornate, historic chambers as everyone else realizes the import of what has just occurred. The Justice is now staring steadily at the curtains, the back of his tall chair quite deliberately, ostentatiously, and literally turned to Houston.

There was a reason.

Charles Hamilton Houston was not just one of America's leading attorneys this November day in 1938. He was also a black man. And Mr. Justice McReynolds, a Tennessean, graduate of Vanderbilt and the University of Virginia Law School, a onetime law professor, a political progressive appointed in 1914 by the progressive hero Woodrow Wilson, is both a racist and a vehement anti-Semite. Now holding a lifetime appointment to the Supreme Court, the man who served Wilson as a trust-busting Attorney General of the United States for the first year and a half of Wilson's term is also the attorney general who approved the progressive President's decision to segregate the federal government.

McReynolds has no intention whatsoever of giving the black lawyer addressing the Court this day the slightest recognition. Why? Because James McReynolds -- like the President who appointed him -- judges people by race. He is, as is Wilson, a rabid white supremacist and a segregationist.

The case Houston argued with McReynolds's back turned was Missouri ex rel. Gaines v. Canada. It was the New Haven firemen's case (Ricci et al. v. DeStefano et al.) of its day. "Gaines" -- the Frank Ricci of the case -- was Lloyd Gaines, an African American who had been denied admission to the law school of the University of Missouri because of his race. The case ("Canada" was Sy Woodson Canada, the school registrar) was one of the first that began the process of overturning the 1896 precedent that was Plessy v. Ferguson. Plessy, of course, was the infamous Court decision that used judicial activism to give constitutional protection to segregation. Segregation that had been instituted across the South after the Civil War by the Democratic Party and frequently enforced by the Ku Klux Klan, the infamous white-hooded terrorists called the "military force" of the Democrats by Columbia University historian Eric Foner. This was done, to appallingly tragic consequence, in spite of direct violations of the post-Civil War constitutional amendments, specifically the 14th Amendment.

Justice James McReynolds could not have cared less.

Indeed, when Chief Justice Hughes, a Republican appointed by President Herbert Hoover, later hands down the decision validating Houston's argument and putting the first crack in Plessy by insisting on Gaines's right to attend the school (which Gaines never did) McReynolds will write the dissent. True to the racial beliefs he shared with the President who appointed him, McReynolds insists that the "best interests" of Missourians are served by "separation of whites and Negroes in schools," his racist values deciding his vote in one of the most important legal cases of the decade.

So too was McReynolds's racism in play in Powell v. Alabama. This case involved nine young black men known to history as the "Scottsboro Boys." Charged with the rape of two white women in 1931 Alabama, the defendants were provided with a lawyer only as the trial was literally about to begin. The trial lasted barely one day, at the end of which all but one of the young men were sentenced to death. The conviction was upheld by the Alabama Supreme Court. Now a civil rights cause receiving massive publicity across the nation, the case was taken to the U.S. Supreme Court. The Court, under the leadership of Chief Justice Hughes (Wilson's opponent in the 1916 presidential election who campaigned on a platform pledging "the protection of every American citizen in all the rights secured to him by the Constitution"), ordered a new trial, siding with the black teenage defendant, "Ozie" Powell, and the Scottsboro Boys. The Court noted the "hostile" atmosphere that had prevailed in denying the defendants appropriate counsel, that blacks had been kept from the jury, and that the trial itself was neither fair nor impartial for racial reasons. In short, the Scottsboro Boys had been denied due process under the 14th Amendment. McReynolds dissented of course, tartly saying he did not see that a new trial was necessary.

Then there was the voting rights case of Nixon v. Condon in 1932. Nixon was Dr. L. A. Nixon, a black Texas doctor denied a chance to vote in the Texas Democratic primary at his El Paso polling place in 1928. The Democrats said whites only, and Dr. Nixon thought otherwise. So he sued. Arriving in the Supreme Court with help from the NAACP, Nixon won his case, with the newly Republican appointed Justice Benjamin Cardozo writing the opinion. McReynolds, the racial views he shared with Wilson yet again in play, dissented.

This was a well-established pattern of McReynolds, and it didn't stop with using his racial views in making decisions handed down from the highest Court in the land. Just as it hadn't stopped him as Attorney General from letting Wilson segregate the government.

Tales abounded all over Washington about Justice McReynolds. His bigotry was no secret. One of his clerks, John Frush Knox (Knox was white -- McReynolds had a rule against hiring blacks and Jews), later wrote a book about him. Here is a glimpse into the world of a Justice of the United States Supreme Court with racist and anti-Semitic views.

• In 1924, the annual photograph of the sitting Justices of the Supreme Court had to be canceled. Why? Because McReynolds informed Chief Justice William Howard Taft he refused to be photographed next to the Court's lone Jewish Justice, Louis Brandeis, their respective seniority dictating they would be placed together. So no 1924 photo exists. Taft, forced to cancel, was one very angry Chief Justice.

• So intense was his contempt for Jews, McReynolds refused to speak to Brandeis for the first three years of their joint service on the Court. When it became known that Republican President Hoover was considering nominating the distinguished New York Appeals Court Chief Judge Benjamin Cardozo -- a Spanish/Portuguese Jew -- to the Court, McReynolds made a point of violating Supreme Court tradition. He wrote a letter to the White House requesting that Hoover not "afflict the Court with another Jew." (Cardozo's Spanish heritage, coincidentally, makes him the first "Latino" on the Court. If confirmed, Sotomayor would be the second.)

• Hoover ignored McReynolds's advice and nominated Cardozo. Hearing the news, the Justice replied: "Huh, it seems that the only way you can get on the Supreme Court these days is to be either the son of a criminal or a Jew, or both."

• When the new Justice Cardozo arrived at the Court for his swearing-in ceremony, Justice McReynolds, echoing his behavior with Charles Hamilton Houston, pointedly read the newspaper. He did not like it, he had said earlier, "when there is a Hebrew abroad."

• McReynolds was so disturbed at the nomination of the Jewish Felix Frankfurter to the Court ("My God," he is said to have exclaimed, "another Jew on the Court!") that he refused to even show up for Frankfurter's swearing-in.

• Settling into the Supreme Court's barber shop for a hair cut from the longtime black barber, a man named Gates, McReynolds decided to talk of Howard University, the famous black university in the District of Columbia. Said Justice McReynolds: "Gates, tell me, where is this nigger university in Washington, D.C.?" According to an account later provided by another Justice: "Gates removed the white cloth from McReynolds, walked around and faced him, and said in a very calm and dignified manner, 'Mr. Justice, I am shocked that any Justice would call a Negro a nigger. There is a Negro college in Washington, D.C. Its name is Howard University and we are very proud of it.'"

From the start to finish of his career as U.S. Attorney General and Supreme Court Justice, a period that encompassed 28 years -- never once was there any major public to-do about McReynolds.

But why?

When Justice McReynolds turned his back on Charles Hamilton Houston -- nothing happened. There was no outcry in the media of the day. The New York Times, champion of McReynolds's presidential patron Woodrow Wilson, appears to have said exactly nothing about the incident. Nor was anything said as McReynolds's racist views tried to shape one Supreme Court opinion after another over time. None of the incidents mentioned above caused the slightest public stir, in spite of the fact that many were commonly known by the Washington and media elites of the day.

What did get attention? A trust-busting progressive as Wilson's Attorney General, with the arrival of the New Deal and his former Wilson administration colleague Franklin Roosevelt in the White House, Justice McReynolds turned out to have a little of the constitutional originalist in him. Except, of course, when it came to matters of race and that pesky 14th Amendment. Startling his Democratic allies, McReynolds in the 1930s became famous in history as one of the "nine old men" as a scornful FDR described his New Deal opponents on the Court. Along with Justices George Sutherland, Willis Van Devanter and Pierce Butler, McReynolds was also labeled one of the Court's "Four Horsemen" for repeatedly ruling against New Deal programs like the National Industrial Recovery Act, the Tennessee Valley Authority and the Social Security Act. He returned FDR's scorn in spades. Vowed McReynolds: "I'll never resign (from the Court) as long as that crippled son-of-a-bitch is in the White House."

Be that as it may, McReynolds left in 1941 and died at 86 in August of 1946.

McReynolds's obituary in the New York Times is instructive. Befitting an influential man who was both Attorney General of the United States and a long-time Supreme Court Justice, McReynolds' passing was given considerable space, trumpeted on page one.

But as was true with the famous Sherlock Holmes case of the dog that didn't bark, the telltale clue of the liberal view of McReynolds is what was not said. There was not a single reference to McReynolds's racism or anti-Semitism. Not one. There was no mention that as the progressive Wilson's progressive Attorney General he had sat by and let the President segregate the government. There was not a word about his treatment of Charles Hamilton Houston. In fact, only one of his Supreme Court cases that touched on race, the one involving the Scottsboro Boys, even got a mention, and a brief one at that. It simply noted McReynolds dissented from the majority.

Interestingly, in a Times story run only Sunday on Lloyd Gaines, all these decades later the Times still does not tell the story of the Wilson-appointed Justice McReynolds, simply restating the storyline of his dissent from the Gaines decision in a paragraph. There is, even now, no mention whatsoever that the progressive ex-attorney general appointed by the progressive president turned his back on attorney Houston because, as with the president himself, Justice McReynolds judged people by race.

Now. What's important here, what applies directly to President Obama and the nomination of Judge Sotomayor, is this.

James Clark McReynolds' views on race never made news, nor was there any demand to remove him from the Justice Department or the Supreme Court -- because he in fact shared the same views on race both with the President who appointed him and with many of the progressives who ran the Democratic Party and the media in Wilson's day. (Prominent in this category was Wilson's Secretary of the Navy Josephus Daniels. A leading progressive media figure of the time as the owner and editor of the Raleigh News and Observer, Daniels introduced progressive reforms such as compulsory schooling for undereducated sailors and the enlistment of women -- while busily segregating the Navy.)

The mistake made today by some conservatives and others is to assume that progressives and liberals are somehow "post-racial," as was sometimes said of President Obama's candidacy last year. Nothing could be further from the truth. Webster's defines racism as "a belief or doctrine that inherent differences among the various human races determine cultural or human achievement, usually involving the idea that one's own race is superior." Whether it was Wilson and McReynolds in 1914 or Obama and Sotomayor today, some version of this is what underlies the common philosophy all four have exhibited in matters racial. Indeed, judging others by race has been a consistent thread in the Democratic Party and liberal politics from the days of Jefferson and Jackson straight through to Obama today.

The nomination of Sonia Sotomayor to the Supreme Court by President Obama is the 21st-century equivalent of James McReynolds's elevation to the Supreme Court by President Woodrow Wilson 95 years ago -- right down to the fact that Sotomayor would literally fill the same seat. Whether the views agreed upon are about segregation and the appropriate relationship of whites and blacks, as with Wilson and McReynolds, or issues of affirmative action and "disparate impact" as with Obama and Sotomayor, the core value -- judging others by skin color -- is exactly the same.

In the case of Obama and Sotomayor, it is critical to understand they think this way not because one is a black man and the other a Puerto Rican woman. They think this way because, just as was true of Wilson and McReynolds, they are people of the left.

What Obama and Wilson, Sotomayor and McReynolds have very much in common is their allegiance to a political party that throughout its entire history has, as a matter of policy, made it a point to marry "progressive politics" with the idea of judging people by their race. This is why one sees side-by-side incongruities of, say, Andrew Jackson creating the modern presidency but appointing the slave-owning Roger Taney first as his attorney general and then chief justice of the Supreme Court -- where Taney inevitably tries to make slavery a permanent fixture of the Constitution by writing the Dred Scott decision. It is why the "progressive" Wilson can create the modern Federal Reserve Board or the Federal Trade Commission or allow enlisting women in the Navy -- while segregating the government. It's why Franklin Roosevelt could create Social Security -- but give a pass to lynching blacks. Or why Barack Obama can propose health care reform -- but nominate someone to the Supreme Court who has spent a career talking about the supremacy of her racial heritage and used those beliefs to rule in favor of discrimination against New Haven firemen of another color.

Seen in this light, Sotomayor's membership in La Raza, her board membership on the Latino Justice/Puerto Rican Legal Defense Fund, her fight with Princeton over room assignments for her fellow Puerto Rican students, her "wise Latina" speeches -- everything right down to her role in the now famous New Haven fireman's case is as predictable as, well, James McReynolds turning his back on Charles Hamilton Houston.

Here she is one more time, as per the Washington Times:

In the Berkeley speech, a 2003 speech at Seton Hall University and a 2002 address at Princeton University, Judge Sotomayor said this: "Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague [federal district] Judge [Miriam] Cedarbaum, our gender and national origins may and will make a difference in our judging."

In both the Princeton speech and the Seton Hall speech, she repeated another line, nearly verbatim, from the Berkeley address: "My experiences will affect the facts that I choose to see as a judge."

This is the world view -- exactly -- of the race-obsessed Justice James McReynolds.

When Senator Obama said of his vote against now-Chief Justice John Roberts that a judge's decision "can only be determined on the basis of one's deepest values, one's core concerns" -- Obama was talking precisely of what drove Justice McReynolds.

And what drove McReynolds -- and Woodrow Wilson -- is precisely the same thing that has driven the American left since its earliest beginnings: race. Judging other people by skin color. Whether it was support for slavery or segregation or lynching or racial quotas, whether the liberal favorite of the day was Jefferson, Jackson, Wilson or Obama, whether the Supreme Court nominee was Roger Taney of the Dred Scott decision, James McReynolds of the Missouri v. Gaines decision, or today's Sonia Sotomayor of New Haven firemen fame -- the scarlet thread throughout is race, race, race and race again.

So those two questions again:

What does the Sotomayor nomination say about Obama? And second: Will Sotomayor deliver what the President expects of her if seated on the Court?

What the Sotomayor nomination says about Obama is exactly what the McReynolds nomination said about Woodrow Wilson: The President of the United States believes it is the role of a Supreme Court Justice to judge others by their skin color.

And answer number two: Yes. Based on everything we now know about Sonia Sotomayor, she will deliver the appropriate racially based Supreme Court decisions for Barack Obama just as James McReynolds delivered them for Woodrow Wilson.

There is one more question: Will the United States Senate -- and Senate Republicans in particular -- have the guts to stop this? 

It's not 1914 anymore. Or is it?

Like this Article

Print this Article

Print Article
About the Author
Jeffrey Lord is a former Reagan White House political director and author. He writes from Pennsylvania at jlpa1@aol.com.