V. Haney and Mathews Join the Court
The appointment of Denman in 1935 signaled the rejuvenation of the Ninth Circuit. Less than two weeks after he took the oath of office, the Senate confirmed Clifton Mathews for the court's fourth authorized judgeship. For the first time in six years, the court was back to full strength. Within six months, Congress created a fifth judgeship for the court, legislation in which Denman took particular pride because he had lobbied strenuously for its passage. The lawyer appointed to this seat, Bert Emory Haney, received his commission on August 24, 1935, and took his oath on September 16, 1935. The paths Haney and Mathews took to reach the federal bench displayed still further the diversity in personal and public service backgrounds that Roosevelt sought from his Ninth Circuit nominees. The experiences of these two judges also exposed caprices in the judicial selection process of a kind different from those encountered by Wilbur, Sawtelle, Garrecht, and Denman.[38]
A native of Georgia, born in Concord on February 12, 1880, Clifton Mathews succeeded to the "Arizona seat" on the Ninth Circuit held by Sawtelle. After studying at Peabody College in Nashville, Tennessee, from 1902 to 1903, Mathews's formal education apparently ended. "He was," stated a colleague, "one of the last of the great self-educated men
of this country." Through self-study, Mathews gained admittance to the Louisiana bar in 1904 and practiced there until 1912. He spent a few years in New Mexico, then moved to Bisbee, Arizona, in 1915, where during the 1920s he earned a reputation as one of the state's outstanding lawyers. A highlight for him in this period was working with future Chief Justice Charles Evans Hughes on a brief in the Supreme Court case of Truax v. Corrigan . After serving on the Colorado River Commission of Arizona in 1929, Mathews became special assistant to the Arizona attorney general and argued a number of prominent cases for the state between 1929 and 1931. In 1933, President Roosevelt named him United States attorney for the district of Arizona, a post he held until his appointment to the circuit bench in 1935.[39]
The staggering load of pending cases, as much as the nominee's own merits, no doubt occasioned the enthusiastic reception Mathews's appointment received. Not since 1929 had the court enjoyed the service of its full complement of authorized judges, and, even then, Senior Judge Gilbert's failing health curtailed his formerly prodigious output. Faced with a steadily climbing caseload, the court could ill afford to run short-handed. The addition of Denman and Mathews thus brought immediate dividends. In the year during which they first sat, the Ninth Circuit disposed of 326 cases. The following year, their first full year, it dispatched 404. In this two-year period the number of cases pending dropped from 257 to 206. In addition, Mathews earned his colleagues' admiration for the care with which he handled his work. Judge Albert Lee Stephens described Mathews as "just about the best lawyer that I have ever known. . . . He was a man of great intelligence and one who read avidly and never forgot anything." Another colleague added: "The Ninth Circuit has produced no greater lawyer than Judge Mathews. For over twenty-five years, he added great luster to our bench."[40]
Mathews was a tough, highly intelligent jurist who viewed the New Deal suspiciously, despite his affiliation with the Democratic party. His new colleague on the court, Bert Emory Haney, who ascended to the Ninth Circuit five months after Mathews, came from a background that was similar in many ways. Haney's path to the bench differed markedly from Mathews's, however, in several key respects. Haney was born in Lafayette, Oregon, on April 10, 1879. His parents, two pioneers of the Oregon country, raised him in circumstances of relative poverty. Haney worked his way through school, doing various odd jobs at neighboring farms and in the town. With the financial assistance of his uncle, Judge George H. Bingham of Salem, Haney attended Willamette University,
where he received his undergraduate degree in 1899. Haney later repaid with interest all the money he had borrowed from his uncle. After teaching briefly to make money to pay for a legal education, he entered the University of Oregon and earned his LL.B. degree in 1903.[41]
Haney immediately pursued a career in public service, beginning work as deputy district attorney in Oregon, a job he held for four years. In 1908 he formed a partnership with George W. Joseph, an association that continued in various forms, with some interruptions for public service, until 1935, when Haney left private practice to join the court. Between 1918 and 1920 Haney was United States attorney for the district of Oregon. During his tenure he argued a number of war-related and Prohibition cases before the Ninth Circuit. After a three-year return to private practice Haney once more entered public service when President Harding appointed him to the United States Shipping Board in 1923. Like Denman, who also served on the board, Haney seemed to court controversy. For instance, during his first three-year term Haney decided that Admiral Leigh Palmer was grossly incompetent, and he therefore battled to remove him from his position as head of the Emergency Fleet Corporation. Although Haney was a Democrat, Coolidge reappointed him to a second term, apparently in the belief that the squabbling would stop. Haney persisted, however, and on August 31, 1925, the president demanded Haney's resignation. In response, Haney pointed out that the public knew his differences with Palmer and that he had believed Coolidge reappointed him in spite of them. Haney did eventually resign from the Shipping Board in early 1926, effective March 1.[42]
The Shipping Board controversies showed Haney's combativeness. Fighting all his life to achieve material success and professional respect, Haney attracted powerful opponents in the years that led up to his nomination to the Ninth Circuit, and they nearly succeeded in derailing the appointment. Throughout the summer of 1935, as Congress considered legislation to authorize a fifth judgeship for the Ninth Circuit, the Justice Department investigated possible nominees. Perhaps because Oregon's last representative on the court, William Gilbert, had died in 1931, attention centered on candidates from that state. Unlike the nomination papers of virtually every other Ninth Circuit judge, Haney's contain numerous letters impressing the political considerations on the decision makers. Patronage played a far greater role in this appointment than in any earlier Ninth Circuit nomination. Opponents of Haney urged his rejection because he had allegedly supported diversion of electricity from Bonneville Dam to powerful corporate interests. The more critical
threat to the nomination, however, originated in the Justice Department itself. On July 23, 1935, Attorney General Homer Cummings directed his assistant, Harold M. Stephens, to "check up on [Haney's] record more fully" after he received an endorsement by telephone from Congressman Walter M. Pierce of Oregon.[43]
Stephens immediately made secret inquiries about Haney. What he found disturbed him. Stephens had asked a close friend, attorney Jay H. Stockman of Portland, to investigate Haney, especially in regard to the disbarment of one of Haney's partners, George Joseph. Joseph's disbarment resulted from "what most lawyers in Portland felt was a mean and at least unsportsmanlike attack upon the Oregon Supreme Court and one of its justices." Stockman discovered that Haney "was not in any way involved in the charges." He did, however, learn that leaders of the Oregon bar viewed a Haney appointment as "purely political." These conversations satisfied Stockman that "the Bar would not be pleased with the appointment as a judicial selection." Stockman passed along one unidentified comment, quite possibly made by Wallace McCamant, who was listed as one of the Portland attorneys consulted. The memorandum did not reveal the utterant, stating only that another attorney had said that Haney "was honest but that he had a stubbornness like Hiram Johnson with similar . . . strong likes and dislikes that would handicap him. He is not near the student of the law as many of the others. Not qualified for Judicial work." From another source, Frank E. Holman of the Seattle Bar Association, Stephens learned that "Haney is a lawyer of some considerable personality and forcefulness but not a lawyer of extraordinary ability or learning."[44] In a telling conclusion, Holman added:
The only further thing I have to contribute to this matter is to say that the Ninth Circuit Court of Appeals has been a distinguished court. Gilbert, Ross, Hunt, Rudkin and Dietrich in the last twenty-five years have upheld the highest standards of the bench. They are now all gone. You might be interested in knowing that we lawyers now look upon the court as a very weak court. Any new appointment in my opinion ought to be made for the purpose of strengthening the personnel of the court as much as possible.[45]
Powerful political influences blunted these objections to Haney's nomination. Numerous Oregon attorneys lauded Haney, and Cummings himself saw "strong arguments for the recognition of Oregon in this matter." Commerce Department officials also urged Haney's nomination. One such official, Chester H. McCall, urged Secretary of Commerce Daniel C. Roper to mention Haney's qualifications to Cummings at a
cabinet meeting in March, 1935. Roper apparently followed his assistant's suggestion: in a letter he wrote a few months later he referred to "our previous conversation concerning Mr. Haney" and spoke of Haney's "exceptional qualifications." To ignore two such requests from a fellow cabinet officer would not have been good politics; to ignore a similar entreaty from James A. Farley, the powerful chairman of the Democratic National Committee and later postmaster general, would have been decidedly bad politics.[46] Haney got the job.
President Roosevelt nominated Haney on August 19, 1935, and Congress confirmed him four days later. He took the oath of office on September 16, 1935, and assumed his position on the court. Haney served only eight years, however, dying on September 18, 1943, at the age of sixty-four. In that brief time Haney staunchly supported the New Deal and established himself as a jurist who was sympathetic to the plight of those hit by the Depression. Despite a stubborn streak, Haney was very likable, and his colleagues seemed genuinely to miss him when he died. Although he was not a brilliant jurist, Haney's record on the Ninth Circuit validated Roosevelt's decision to appoint him in the face of belittling remarks made of his candidacy by some members of the Oregon bar. As one of Haney's colleagues on the Ninth Circuit, William Denman, said to Haney just before his death, "No judges are more meticulous in arriving at their own conclusions and giving their own completely prepared contribution to a decision than yourself and Judge Mathews." In a memorial oration, a friend captured Haney's hard road to the bench: "He was willing to pay the price of success. He knew that respect, esteem and an exalted place among his fellowmen could not be purchased save by study, self-denial, undaunted resolution and a fidelity to high purposes. He attained a place on the bench of this court, a well-merited honor, among the highest that can be bestowed, and that comes to but few."[47]
With the addition of Haney, the Ninth Circuit had five sitting members for the first time in its history and joined the Second and Sixth Circuits as the largest circuit courts of appeals in the United States. These five judges—Wilbur, Garrecht, Denman, Mathews, and Haney—traveled different life and career paths to the bench. Virtually the only trait they shared was that none had ever served as federal district judge. As practicing lawyers, each had trial experience. But for the first time since Erskine Ross's elevation to the Ninth Circuit in 1895, the court boasted
no one who had risen from the district court ranks.[48] This common trait did not translate into agreement on such issues as deference to trial court proceedings, willingness to scrutinize fact-findings, or judicial philosophy. The New Deal brought into immediate focus the ideological similarities and differences of these new members of the court, as well as the extent to which substantive differences contributed to the need for administrative reform.