On June 7-10, 1916, the Republican Party held its national convention in Chicago, nominating Justice Charles Evans Hughes on the third ballot, to run for the presidency against incumbent President Woodrow Wilson. Hughes resigned from the Supreme Court on June 10, after his nomination had been secured. For several days, therefore, Hughes was both a nominee for the presidency (at the convention) and a sitting justice.
The Ginsburg Precedent
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Why did he resign? He didn't win … He could have stayed on the court and ruled against Wilson's initiatives, as a good Supreme Court Justice should!
Again, in this Orwellian culture where anything that one party does is, in the mind of those who slavishly adhere to that party, justified, JUDICIAL BIAS IS GOOD when it promotes the political aims of the Party, and DECLARING JUDICIAL PREJUDICE IS FAIRNESS because that way, Party membership is acknowledged for all to see, thereby educating the ignorant that the Party is always right.
Always, the Party. In 1984, the Party was …. That would be a good trivia question. No, wait, down the memory hole with that book, with all the other values that used to be associated with the Party in question.
Animal Farm, 1984, and all the like … Fiction no more.
Steve, the nomination of Hughes occurred in an era when candidates for the nomination did not go out and campaign. Supporters of him advocated for choosing him without any need on his part to speak (other than presumably telling key people he would accept if nominated). So it's not like he was speaking to the De Moines Rotary Club while in judicial robes.
In 1940, Justice Douglas's name was one of those being seriously considered to follow FDR after his two terms. Once the president said he'd be willing to run for an unprecedented third term, the discussion about Douglas and everyone else became moot.
It was well known in 1916 that Hughes was interested in the nomination, even though he was not giving press interviews. I think it is a fiction to say that candidates simply allowed their names to be placed in nomination. Instead, they had well-known backers and floor managers who did the work for them. Point being, that Hughes was simultaneously a candidate and a sitting justice.
Yes, it was a different era, and the comparison does not tell us much if anything about the way we should regard justices today. John McClean sought the Republican nomination in 1856; Salmon Chase went after the Democratic nomination in 1872. But it has been slightly more than 100 years since we have seen an actively political SCOTUS justice.
(Douglas, btw, was considered for the vice presidency in 1944.)
As long as we are looking back … from the Federalist 78
"[T]he general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers.'' And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; …
The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.
In 1948 Douglas was actually offered the vice-presidential nomination; had he accepted, he would have been running against Earl Warren.
How confused can this group be?
The issue isn't whether a member of the SCOTUS sought political office or once held political office, although those facts might clearly signal political affiliation. ( Past offices held can be explored in nomination hearings; future offices are arguably irrelevant; discussions while in office about accepting political offices would seem to be supremely unethical, if not an outright breach.)
The issue here is whether a sitting member of the Court violates the canons of judicial ethics when that member speaks publicly against a candidate and announces her positions on policies perceived to be advocated by that candidate in particular. (Members have generally avoided speaking even generally about hot button issues like abortion, etc. that might come before them; now, in the world of Orwellian analysis by law profs who are becoming no more than party hacks, this barrier is admittedly breaking down, bringing the prestige of the court down with it, but it seems even the partisans can understand how wrong this latest outburst has been).
anon – yup