Almost President (47 page)

Hughes was instrumental in thwarting Roosevelt's plan, and his political savvy showed the benefits that practical political experience can provide in interpreting the law. Until recently, politicians routinely served on the court. Hughes's predecessor as chief justice had been former president Taft, and among his successors was former California governor Earl Warren. Of the 112 justices who served on the Supreme Court through 2010, nearly thirty had once served in Congress and several more had been governors. But the last justice with any experience in elected office was Sandra Day O'Connor, appointed the court's first woman justice in 1981 and retired in 2006. She had served in the Arizona State Senate. None of the current nine justices, as of this writing, have ever held elective office and all are former appellate court judges.

It has led to concern about the lack of professional diversity on the court, which brings to mind the story of Vice President Lyndon Johnson raving to House Speaker Sam Rayburn about the brilliance and educational qualifications of John Kennedy's aides, some of whom were helping push the United States ever more deeply into the Vietnam War. This led Rayburn to respond, “I hope you're right, Lyndon, but I just wish one of them had ever run for county sheriff.”

Henry Julian Abraham,
Justices and Presidents: A Political History of Appointments to the Supreme Court
(Oxford University Press, New York and Oxford, 1992).

Merlo John Pusey,
Charles Evans Hughes, Vols. 1 and 2
(Macmillan, New York, 1951).

JAMES M. COX

1920

John McCain is not the only presidential candidate who some say was upstaged by his vice presidential nominee. In 1920, Ohio governor James M. Cox was the Democratic nominee for president, and his running mate was thirty-eight-year-old Franklin Delano Roosevelt.

Roosevelt had little political experience at the time, having been a New York state senator with some reform credentials and having served as assistant secretary of the Navy during World War I. But Cox personally chose Roosevelt to be his running mate. He thought Roosevelt could help carry the battleground state of New York (he didn't); as a member of the Wilson administration he could help unify the party (the Democrats stayed split); and the Roosevelt name would bring cachet to the campaign (the children of Theodore Roosevelt, FDR's fifth cousin, actively campaigned for Republican nominee Warren Harding).

It was also thought that Roosevelt, like McCain's running mate, Sarah Palin, had sex appeal. He was young, energetic, and very handsome—a great asset, it was thought, in 1920, which would be the first year when women in all states would be allowed to vote. While Roosevelt was not able to perform all the miracles that Cox had hoped he might, he was an asset to the campaign, even in a losing cause, and his future seemed limitless. Then, in August 1921, barely nine months after the election, Roosevelt contracted polio.

The 1920 presidential contest pitted two small town Ohio newspaper publishers against each other. Harding was a U.S. senator, while Cox had been a popular three-term governor. Cox established a remarkably progressive record his first term, creating workers' compensation and a citizen referendum process, among other things, but as governor during World War I he was more conservative, cracking down on labor violence that impeded the war effort. That crackdown, plus his success in business, led conservative Ohioans to consider Cox “a ‘safe' kind of liberal,” he said.

Cox won the Democratic nomination in 1920 after the forty-fourth ballot. The Democrats tapped Cox in part because it was clear Wilson was no longer popular and Cox's distance from the administration was considered an asset. Then Cox surprised and appalled many Democrats when, after an emotional meeting with a very ill Wilson, he made American membership in the League of Nations the centerpiece of his campaign. Joining the league might have been a popular campaign issue in 1919; it was no longer in 1920. Americans wanted to put the tumult of the war and the Wilson years behind them and responded instead to Harding's promise of a “return to normalcy.” Cox lost in a rout, carrying eleven Southern states and nothing else, winning only 34 percent of the popular vote to Harding's 60 percent.

Cox had been worried his personal life would become an issue during the campaign. He was a rare divorced politician, his wife having accused Cox of mental cruelty and neglect shortly after he was elected to Congress in 1908. But Harding and the Republicans had no interest in making the candidates' personal lives an issue; Harding himself had married a divorcée and, as few others knew, had fathered children with two other women who were not his wife.

After his defeat, Cox remained active as a party power broker but spent most of his time building up what was first a newspaper and then a multimedia empire. Still a family-owned company, what is now known as Cox Enterprises is one of the nation's ten largest media companies whose holdings include the company's original newspaper, the
Dayton Daily News,
plus the
Atlanta Journal-Constitution,
the
Austin American-Statesman,
and, as of 2011, fifteen television stations, eighty-six radio stations, and cable television and Internet service providers.

While Cox returned to the newspaper business, Roosevelt stayed in politics. He overcame his disability to become governor of New York and president of the United States—the only unsuccessful vice presidential candidate to ever win the presidency.

James M. Cox,
Journey Through My Years
(Mercer University Press, Macon, Ga., 2004).

David Pietrusza,
1920: The Year of the Six Presidents
(Carroll and Graf, New York, 2007).

JOHN W. DAVIS

1924

The 1924 Democratic National Convention in New York City, which nominated “lawyer's lawyer” John W. Davis after a record-breaking 103 ballots, was so arduous that Will Rogers imagined this father-son conversation: “Father, were you in the big war?” And the father would reply, “No, son, but I went through the New York convention.”

The surface argument that dominated the convention was over whether the party platform should condemn the reborn Ku Klux Klan by name. A compromise condemned all secret organizations without singling out the Klan, but the debate exposed deeper fissures within the party: urban vs. rural, North vs. South, conservative vs. progressive, Protestant vs. Catholic, and, as Prohibition was in full swing, “Drys” vs. “Wets.”

Davis, a former West Virginia congressman, was a long shot among the nineteen men nominated until it was clear no candidate had a prayer of getting the two-thirds vote necessary to win. As balloting wore on, Davis's appeal grew because he had progressive credentials, having been Wilson's solicitor general and ambassador to Great Britain,
and
conservative credentials as a Wall Street attorney and counsel for J. P. Morgan.

Davis understood his nomination was “an empty honor.” The party was split, the nation was prosperous under Republican Calvin Coolidge's administration, and Davis was saddled with William Jennings Bryan's brother, Charles, as his running mate, an accommodation that cost him a good deal of the Catholic vote. Still, Davis ran an honorable campaign, repeatedly condemning the Klan by name. But with Progressive Wisconsin senator Robert LaFollette in the race as a third party candidate, Davis ended up receiving less than 29 percent of the popular vote, the second-lowest total for a major party candidate, after William Howard Taft's 23 percent in 1912.

So Davis returned to his pride and joy, the law, becoming known as the greatest legal advocate in American history. He made oral arguments before the U.S. Supreme Court 140 times—more than anyone since Daniel Webster—and justices such as Oliver Wendell Holmes and Hugo Black praised him as the most persuasive advocate they had ever heard.

Asked to explain Davis's greatness as a lawyer, a contemporary noted his courtesy, his dignified, commanding appearance, confidence, and perfect diction. He made forceful, logical arguments, never making emotional appeals to win over judge or jury. He was so revered that future Supreme Court justice Thurgood Marshall claimed that he tried to emulate Davis and did so most effectively when he opposed Davis as counsel in the most celebrated Supreme Court case of the twentieth century.

Davis often represented the underdog, defending a conscientious objector during World War II, and arguing successfully that President Harry Truman had no right to nationalize the steel industry to prevent a strike. But he also represented, without fee, the State of South Carolina when it was sued, along with school districts in Virginia and Kansas, by African-American parents who were challenging the “separate but equal” standard for public schools that the Supreme Court had established in
Plessy v. Ferguson
in 1896. Because of a quirk in the chronology of when the several lawsuits were filed, the new case demanding desegregation of the public schools was known as
Brown v. Board of Education of Topeka
.

While Davis was not a virulent racist, he ridiculed the notion that segregation harmed black children and believed both races were better off separated. Davis was certain precedent was on his side; Marshall agreed, but he also understood that in order to reverse settled law a lawyer needed to “convince both [the justice's] . . . mind and his emotions.” To argue the law was unchangeable, legal scholar Alexander Bickel observed, “was to deny the essence of the Court's function.”

Having already struck down segregation in housing, public transportation, and higher education, the court now unanimously struck it down in the most emotionally laden venue possible: public schools. Davis at first predicted turmoil, and there was some of that, but upon reflection he later decided that if the court were to order such a sea change, he was glad it was on a unanimous decision. It was a rare loss for America's greatest attorney, but a loss that served the cause of equal rights.

William H. Harbaugh,
Lawyer's Lawyer: The Life of John W. Davis
(Oxford University Press, New York, 1973).

ALFRED M. LANDON

1936

Many people believed that Kansas Republican governor Alfred M. Landon would defeat Democratic president Franklin Roosevelt in a landslide in 1936. They really did. They based that belief, at least in part, on the
Literary Digest,
which had surveyed millions of Americans and predicted in its October 1936 issue that Landon would win by a 57 to 43 percent tally.

A young pollster just starting out named George Gallup had also done a survey, but with a much smaller, random sample, and he predicted Roosevelt, not Landon, would win in a landslide. People laughed at Gallup. After all, the
Digest
had, as its editors proudly noted, “been right in every Poll” since 1916. The
Digest
had mailed its survey to more than ten million Americans whose names were drawn from lists of automobile and telephone owners. An extraordinary 2.3 million people responded to the survey, an extremely large sample, especially compared to Gallup's sampling of fifty thousand.