A Brief History of Congress Members on the Supreme Court

Sen. Ted Cruz (R-TX) & Mike Lee (R-UT)

In a midterm election year, one where the president has a trifecta in his party, it has become a common discussion around Supreme Court retirements.  Bill Clinton, Barack Obama, Donald Trump, & Joe Biden all had appointments during their first midterm of a like-minded justice retiring and being replaced by someone whose belief system matched the president, and George W. Bush had this happen preceding his second midterm.  Rumors have abounded for weeks over a plausible retirement, many of them centering around Associate Justice Samuel Alito, and while Alito has claimed he'll stay on through the end of the year...I'll believe it when I see it.

One of the interesting things that has popped up with this conversation has been around politicians who are interested in Alito's seat.  Sen. Chuck Grassley has publicly floated the names of Sens. Ted Cruz & Mike Lee for a theoretical opening, and there are reports from Axios that Florida Gov. Ron DeSantis has been "begging" for a job in the Trump administration, or even a shot at the open Supreme Court seat.  This all feels a little odd for most modern Court watchers, who have largely seen established or career jurists on the Court.  Of the current nine members, all but one (Elena Kagan) served previously on the federal bench in a lower Court but it's not crazy for jurists to have a more blatantly political background before joining the Court.  While none of the current members have held political office (the last Supreme Court justice to have held political office in their career was Sandra Day O'Connor, who was an Arizona State Senator in the early 1970's), many have served in political offices prior.  Kagan was a member of the Clinton & Obama administrations, Thomas & Alito both served in the Reagan administration (Alito would also serve in George HW Bush's, as would John Roberts), Neil Gorsuch served in the second Bush administration, and Amy Coney Barrett & Brett Kavanaugh were both attorneys for the Bush campaign during the 2000 Florida recall.  So I thought it'd be interesting today to take a look, specifically at members of Congress, and their history of serving on the Supreme Court given the possibility that Lee or Cruz might join them.

Prior to the 17th Amendment, there was a relatively common history of members of Congress being nominated for or even winning seats on the Supreme Court.  Edward Douglass White is maybe the most notable member to do this, having served as a US Senator from Louisiana for a few years, and was chosen as a compromise option by President Cleveland after two previous nominees he'd put before the Senate were rejected (White would go on to become Chief Justice, appointed by William Howard Taft, the man who would eventually succeed him to that position, and would serve a total of 27 years on the bench).

But we'll focus this article on those chosen after the 17th Amendment, when senators & House members were both elected directly by the public.  During that time, just five US Senators and one House member were chosen for the Supreme Court: George Sutherland, Hugo Black, James F. Byrnes, Harold Hitz Burton, Sherman Minton, & Fred Vinson.  The most recent of these was Minton in 1949 (it's worth noting that Earl Warren, who had been Governor of California prior, and is generally the most commonly-cited politician/Supreme Court jurist outside of Taft, was appointed later than this in 1953 by President Eisenhower), so there's not a lot of recent precedence for this.

Justice Hugo Black

Historically, senators had a much easier time in the very clubby upper chamber getting appointed to the Supreme Court.  George Sutherland, for example, was confirmed on the day of his nomination to the Supreme Court, as was James Byrnes, and Harold Burton was confirmed the day after his nomination, as was Fred Vinson.  The only two nominations of these six that appeared to have any sort of resistance were Black's and Minton's.  In Black's case, it was allegations that he was a member of the Ku Klux Klan (which turned out to be true), and in Minton's case there were allegations of cronyism, given he was a close friend of Harry Truman's from when they were in the Senate together.  But all six would be confirmed, either by voice vote or overwhelming margin.

This would not, however, be the case for Homer Thornberry.  While Minton was the last member of Congress to be put on the Supreme Court, Thornberry was the last time one was nominated.  Thornberry was nominated by President Johnson in 1968 for the Supreme Court, and at that point in many ways his time as a congressman from Texas (who had succeeded LBJ into the House) had been eclipsed by his appointment to the 5th Circuit in 1965 by Johnson.  Johnson had wanted Thornberry to take over for Associate Justice Abe Fortas, who had been nominated to succeed the late Earl Warren as Chief Justice.  But Fortas was in a contentious battle at the time of his nomination with Sen. Storm Thurmond (R-SC), who alleged that legal (but questionable) payments that Fortas had received through American University would color his judgment, and Fortas's views on pornography in relation to free speech had made him a cause celebre for Thurmond.  Eventually Fortas's nomination was lost as a result of the filibuster (signs of things to come) and given Fortas was a sitting Associate Justice, without him getting a promotion, Thornberry didn't have a place to go (and for reasons that aren't entirely clear, Johnson didn't just try to nominate Thornberry directly to be Chief Justice), and so Thornberry remained on the 5th Circuit bench for the remainder of his career.

Thornberry is the last time that a member of Congress was formally nominated, but that doesn't mean that rumors haven't come up repeatedly in recent decades that the trend could return.  Ronald Reagan looked at Orrin Hatch, Howell Heflin & Paul Laxalt for his open Supreme Court Seats, and John Danforth was considered by George HW Bush.  This has continued on with Joe Lieberman & George Mitchell mentioned by President Clinton, John Cornyn, Mike Crapo, Mike DeWine, & Mel Martinez by President George W. Bush, and during the Obama administration Cory Booker, Amy Klobuchar, & Claire McCaskill were all mentioned.  In fact, during Trump's first administration Cruz & Lee were also rumored for spots.  The only recent president to not have publicly floated names of a member of Congress is Joe Biden.

All of this is to say that the Cruz & Lee thing feels right on schedule-it would be weird if we didn't have Senators on the list of potential Alito replacements.  But as we've seen in the past 70 years, just because you're on the list, doesn't mean you won't be considered.  Trump's atypical approach to the job could change this, but this is definitely "believe it when I see it" instead of expecting Lee or Cruz to be truly considered.