"...late 1910s a Supreme Court that included three staunch progressives in Brandeis and Clarke, appointed by Hearst, and William Morrow, somehow an appointee of Foraker; three moderates, comprising Hughes' Justices in Mack and Kenyon and their role model, Holmes; and finally three conservatives, Chief Justice Taft first among them and then Judson Harmon and, finally, Robert T. Lincoln. This rough breakdown of the bench's ideological alignment was inexact - Taft as Chief was much swingier than he had been as an associate justice, and both Holmes and Harmon were in many ways products of a previous generation of jurists with some heterodox views - but it was generally the understood spectrum of opinions on the highest court in the land, reshaped dramatically by the deaths of Melville Fuller and George F. Edmunds in 1910 and 1914, respectively, which continued the bench's rapid movement towards tolerance if not advocacy of judicial progressivism that manifested itself in Brandeis' theory of legislative supremacy and a limited role for judicial interference in the law.
Of the Justices, the man who disagreed most sharply with this take was Robert Lincoln, the second-most tenured Justice behind Harmon and the last of its ultraconservatives. It would be impolitic and overly harsh to dismiss Lincoln simply as a reactionary legal hack, but the more isolated he became on the Court after the deaths of former fellow travelers such as Justice Edwin Phelps or Fuller, his idiosyncrasy and contempt for emerging legal doctrines became all the more apparent. That all said, it was not Lincoln's legal ideology that diminished his reputation as a jurist, but rather the nature of his appointment; he was the son of a former President, had been a loyal Cabinet officer in the Blaine years and, like Nathan Goff some years later, translated that service into a lifetime appointment to the bench, but more importantly he was a longtime close family friend of the President who appointed him, John Hay, and his appointment came at the height of the Pullman Strike, a company he had represented legally for many years. Lincoln also had a reputation as a man who tended to have an anti-Midas touch; he was partly blamed for helping the United States stumble into a gunboat war in the 1880s with Chile, and his appointment to the bench had temporarily damaged Hay's political standing and helped cement impressions in the Western states of the Liberals as a clique of Eastern aristocrats passing government jobs around to their boarding school and university friends like Britain's Old Etonians. It was perhaps fitting, then, that Lincoln's retirement from the Supreme Court in May of 1917 would trigger the first political debacle of Root's young Presidency, as political debacles had followed Lincoln everywhere in his career and life.
Root was unsurprised when Taft informed him via letter that Lincoln would be unlikely to return at the start of the next Supreme Court term, considering Lincoln's age and ideological diminution on the Court. Lincoln made it official a week later at a dinner with the Illinois Bar Association, drawing mixed reactions as he did not announce his stepping down from the bench in Philadelphia, as had been expected earlier. Indeed, Lincoln never returned to the capital, at least not for anything other than informal visits with friends, instead splitting his time in retirement between his family home in Chicago and a lavish home in Manchester, Vermont where he served as president of the local golf course and dabbled in amateur astronomy until his death in 1926. The administration had suspected that Lincoln was waiting out the end of the war as a courtesy before retiring, especially after the death of Edmunds from complications of an injury suffered in the evacuation of Washington; Van De Vanter noted in a letter to a friend that it was also a possibility that Lincoln may not entirely have approved of Hughes' choices in Mack and Kenyon, two Justices well to his left, and wanted to make sure a more ideologically compatible man was appointed in his stead, and that he trusted Root more on that front (this idea is largely disputed by Lincoln's biographers and Supreme Court scholars, but it was bandied about by a few men in Root's orbit).
There was no paucity of quality jurists from which to pick for Lincoln's seat, and Root had a careful balancing act ahead of him, with the Liberal majority in the Senate razor-thin. With the exception of Lincoln and Brandeis, most Supreme Court justices were approved fairly easily, especially when the President's party held the Senate; in cases where they did not, the opposition had a major role in shaping who exactly could realistically be appointed, which was how Hughes wound up with men like Mack and Kenyon. Root faced Senate math somewhere in between, with the typical Presidential prerogatives around judicial appointments likely to be honored but the bounds of his potential appointments likely to be tested by Democrats and some progressive Liberals. As such, his initial choice of Pierce Butler was a bizarre one, understood in the Senate as a provocation.
Butler was on paper a theoretically politically shrewd choice - he was an Irish Catholic, the son of immigrants who had fled the Great Famine, who hailed from Minnesota. As a Minnesotan Irish Catholic Liberal he was already a rare breed thought to appeal, potentially, to Irish Catholic voters whom the party had still failed to court even after their victory in the war and whom Root was particularly eager to appeal to after the massive demonstrations of March 17th. Butler also had not served on a court previously, spending his entire career in private practice, and thus had no rulings that would make him controversial, while also having served as president of the Minnesota Bar. Nonetheless, his nomination proved immediately a huge political firestorm. He was a railroad lawyer being asked to replace a former railroad lawyer - it was widely understood by progressives what exactly that entailed. Speeches and writings Butler had made over the years revealed a particular hostility to many of the doctrines and precedents of the Edmunds and Taft courts that had broadly expanded the federal government's powers, including the ability to levy an income tax. Worse, he had suggested expelling "radical" students from the University of Minnesota (where he had briefly served on the Board of Regents) and had argued cases on behalf of the Canadian government, earning him skepticism from isolationist Midwesterners and anti-Orange Irish Catholics who would have otherwise been his strongest base of support.
The eruption of the Minneapolis General Strike as Butler's nomination was to go before the Senate just before the summer recess essentially defeated the bid. Suddenly, Butler's cases in his home state came under even greater scrutiny, including his ties to various Minnesotan conglomerates involved in the strike; Senator Ole Hanson of Washington announced his opposition to Butler's nomination, as did LaFollette, and both of Minnesota's Democratic Senators, who had previously been cautiously supportive, concurred. Root, seeing flashbacks of Hay's campaign to get Lincoln over the hump at the height of the Pullman Strike, blinked and informed the press after leaving a golf match he would withdraw Butler's nomination, rather than have Butler decline it to save face, a move that his opponents saw as emphatically weak and ungentlemanly.
Having observed that firestorm, Van De Vanter shrewdly let Root know he was uninterested in the job, and so Root was on to his third choice - George Wickersham, the longtime President of the New York Bar Association. Wickersham was no moderate, but he was generally viewed as more collegial than Lincoln and was well-liked in Liberal circles for his efforts to promote Black attorneys within that organization (in sharp contrast to his anti-Semitism, which had erupted during Brandeis' nomination seven years earlier). Conservative but uncontroversial, and unlikely to modify the makeup of the Court, Wickersham advanced to the floor of the Senate, where no Liberals opposed him but only five Democrats voted in support. Butler had done real lasting damage not only to Root, but to the mechanisms of Supreme Court nominations, for some time to come as the deference and unanimity once considered surefire seemed to evaporate. Butler would continue in private practice until his death in 1939, one of the most prominent lawyers on the Supreme Court bar in time even if he seldom won cases; as for Wickersham, his sixteen years on the bench saw him often in the minority and consigned as a mediocre and historically unimportant Justice in the grand history of the Court..."
- The Root of the Problem: The Tumultuous Term of America's 29th President
