September 18, 1945
The prospect of a vacancy on the Supreme Court generally stirs speculation about which incumbent members of the Senate might be eligible candidates. Given the increasing contentiousness of the Senate review process for high court vacancies, some believe that selecting one of the Senate’s own members might smooth the road to a speedy confirmation. This raises the question: "How often are senators chosen for seats on the high court?"
In all of the Senate's history, only seven incumbent members have moved directly to the Supreme Court—the most recent being in 1945. Seven others were seated within a few years of leaving the Senate—the most recent being in 1949. The first incumbent was Connecticut's Oliver Ellsworth, who in 1796 became chief justice. As a senator, Ellsworth had shaped the 1789 Judiciary Act, which put in place the federal court system. The only former senator to enter the Court as chief justice was Salmon Chase of Ohio. Chase had left the Senate to serve as Abraham Lincoln's treasury secretary prior to his appointment in 1864.
In the summer of 1945, the retirement of Justice Owen Roberts presented a political challenge to Harry Truman, who had been president for only three months. The seven remaining associate justices had gained their seats as Democratic appointees of President Franklin Roosevelt. In a gesture designed to improve relations with Republican congressional leaders, the new Democratic president decided to appoint a Republican.
In making his decision, President Truman consulted with Chief Justice Harlan Stone, the Court's only Republican, to see if Ohio Senator Harold Burton would be acceptable. Truman and Burton had become friends when they served together on the Senate Special Committee to Investigate the National Defense Program. Chief Justice Stone welcomed the appointment on the theory that Burton's Senate experience would be useful in helping the Court determine legislative intent as it reviewed statutes.
Truman's decision was not entirely altruistic. In sending a Republican to the Court, the president knew that the Democratic governor of Ohio was prepared to replace Burton in the Senate with a Democrat.
Three years later, in 1949, Truman named his former Senate seat-mate, Indiana Democrat Sherman Minton, to the Supreme Court. Minton had come to the Senate with Truman in 1935 as part of a 13-member all-Democratic freshman class.
During his seven years on the Court, Justice Minton occasionally strolled onto the Senate floor to listen to debate. Today, he is remembered as the last member of Congress—incumbent or former—to receive a Supreme Court appointment.
Abraham, Henry J. Justices, Presidents and Senators: A History of U.S. Supreme Court Appointments From Washington to Clinton. 4th ed. Lanham, MD: Rowman & Littlefield, 1999.