The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last night, I observed that judicial nominees seem to survive the presidency. Three of President Nixon's judicial nominees were eventually commissioned by President Ford. And three of President Kennedy's judicial nominees were eventually commissioned by President Johnson.
There is some fascinating backstory about these "midnight appointees."
President Nixon resigned on August 9, 1974. But on August 8, Nixon nominated Judge Donald D. Alsop to the U.S. District Court for the District of Minnesota. Alsop was confirmed on December 18. And President Ford signed his commission on December 20.
In 2014, the Star Tribune wrote a profile about Judge Alsop's retirement. The piece offered some speculation why Alsop was one of the last nominations Nixon made.
He owes his career to Nixon's last-minute efforts and a stroke of bipartisan help from a trio of Minnesota heavyweights: Democratic Senators Hubert H. Humphrey and Walter Mondale and Republican Rep. Ancher Nelsen.
"What we did back then with Alsop, you wouldn't hardly see anymore," Mondale said.
Alsop doesn't know why Nixon turned to sign his nomination on his last full day as president — it "was the last thing on his plate," Alsop said — and can only speculate about his good fortune. He said Time Magazine reported Nixon did it to show the government was still running. Nixon historian Stanley Kutler said he's surprised the nominations even went through, because Nixon "was a cooked goose at that time."
After Nixon's resignation, Senator Humphrey, a Democrat, still pushed the nomination forward.
Judge John Tunheim, who now serves on the Minnesota U.S. District Court, was an intern in Humphrey's Washington office during the fall of that year. He remembers the question buzzing around the office. Alsop was nominated but not confirmed. What should they do with him? Tunheim said Humphrey and his administrative assistant, David Gartner, wanted to be fair and continue working for Alsop's confirmation.
Humphrey and Mondale worked to shepherd the Nixon appointee through the Senate confirmation process, even offering a resolution to extend his nomination when a congressional recess could have let it expire. The Senate, controlled by Democrats, confirmed Alsop on Dec. 18, 1974. He started on the bench the following month.
I can't fathom this sort of bipartisanship happening today. Alsop offered this account:
By July 1974, things were going badly for Nixon. At the end of the month, the U.S. Supreme Court ordered the president to release the secret tapes he'd made of conversations in the Oval Office. On Aug. 5, Nixon did so, and the nation learned that its president had ordered the FBI to stop the Watergate investigation.
On Aug. 8, Alsop was working a trial in Windom, Minn. During a court recess, he got a call from his friend Nelsen. Nixon would nominate him to the federal bench.
Alsop's office in the Warren E. Burger Federal Building and Courthouse in St. Paul is plastered with memorabilia from that day. Framed on his wall are his nomination letter signed by Nixon, a copy of Nixon's resignation letter and a letter declaring his confirmation by the U.S. Senate.
He also has a few words for the man who used his last hours in office to give him that job.
"Thank you, Mr. President," Alsop said, "for providing a marvelous experience to me."
What a sequence of events! Thank you to Anthony Sanders for sharing this story.
There is another backstory I would love to dig deeper into. On July 9, 1963, Kennedy nominated William Homer Thornberry to the U.S. District Court for the Western District of Texas. At the time, Thornberry was a Representative in the House from Texas. Thornberry was confirmed on July 15, 1963, before Kennedy's death. But Kennedy did not sign the commission in time. Kennedy was assassinated on November 22, 1963. President Johnson signed the commission on December 17, 1963.
Why was there such a huge gap between Thornberry's confirmation, and when his commission was signed? Both Kennedy and Johnson held off on finalizing the appointment. I can offer some rank speculation. Thornberry was a close ally of Johnson. They were both involved in Texas Democratic policies. At this time, the House was considering what would become the Civil Rights Act of 1964. My guess: LBJ wanted Thornberry to stay in the House, as long as possible, to help guide the passage of the bill. And the bill finally passed the House in February 1964.
Does anyone have any more information about this delay? Please share!