George Sutherland’s judicial confirmation

Written by Derek Monson

October 18, 2022

In September 1922, George Sutherland was in London, England awaiting a ship back to America after representing the United States in an arbitration with Norway during six weeks of arguments at The Hague, Netherlands. He received a simple note from President Warren G. Harding, who had appointed Sutherland to his now-completed assignment:

My dear Senator Sutherland:

While I have your wireless message before me I wish to make a grateful acknowledgment and let it go to your Washington address, because I assume you are soon to be home. Mrs. Harding will be grateful to know of the sympathetic interest of Mrs. Sutherland and yourself and I shall be more than pleased to tell her when she is sufficiently recovered to appraise the many kindly messages which have come to me.

Since your departure for Europe you have been nominated and confirmed as a Justice of the United States Supreme Court. I suppose you know all about this without me having taken the time to communicate with you. What pleases me more than anything else is that your nomination was received with unanimous satisfaction throughout the country.

Very sincerely yours,

Warren G. Harding

Though not even inside the nation’s borders, Sutherland had been both nominated and confirmed to the United States Supreme Court – both occurring on the very same day. Of the 164 presidential nominees to the Supreme Court submitted to the United States Senate for confirmation, in the history of the country Sutherland was only one of nine to be nominated and confirmed on the same day. This achievement was the culmination of several factors over many years that aligned for Sutherland to accomplish in one day in 1922 what takes months today.

Legal accomplishment

After only one year of law school at the University of Michigan, Sutherland returned to Utah where he was admitted to the bar and opened a law firm with his father in Utah in 1883. Within three years, Sutherland was arguing cases before the Utah Territorial Supreme Court.

In 1886, on behalf of his client Nathaniel Groesbeck, Sutherland put forward a unique legal theory that eventually got Groesbeck released from prison. The legal theory was eventually accepted by the U.S. Supreme Court in a similar case to Groesbeck’s and “many others, convicted under like indictments, were immediately released.”

Sutherland also argued at least seven cases before the United States Supreme Court. Four of those occurred while he practiced law in the nation’s capital prior to his nomination to the court. Notably, in three of those cases he was still a sitting U.S. Senator from Utah (between 1904 and 1916) due to his “growing reputation as a constitutional scholar.”

Congressional accomplishment

By the time Sutherland was nominated to the Supreme Court, the New York Times noted that he had “established a reputation as one of the country’s foremost authorities on the Constitution, constitutional law and in the history of that [document].” The seeds of that reputation were planted in his formative years growing up in Utah where “he conceived a deep reverence for the Constitution and for fundamental American institutions, and his interest led him into deep study of them.” He was known for saying that the country’s “soul is the Constitution.”

These seeds grew into Sutherland’s reputation for mastery of constitutional knowledge, history and understanding while in federal office. One member of Congress who served while he was a senator said of him, “at the time there was no abler lawyer in either House than Mr. Sutherland….Not only has he a profund (sic) knowledge of the constitutional history of America, but he is an ardent believer in our constitutional system, with all that that implies.” This member of Congress cited Sutherland’s “masterful report” regarding the creation of a federal worker’s compensation system, which the member of Congress initially opposed, with “completely convert[ing] me to its support.”

British Ambassador to the United States from 1907 to 1913 and respected authority on law and history Lord Bryce called Sutherland “the living voice of the Constitution.” The Chief Justice of the Supreme Court from 1921 to 1930 and former President of the United States William Howard Taft was “quoted as saying that Mr. Sutherland was the greatest constitutional lawyer in the Senate.”

Due in part to Sutherland’s well-earned reputation for constitutional knowledge, and his political connections, he was actually considered to fill multiple Supreme Court vacancies prior to the one for which he was actually nominated and confirmed.

Political connections

After a brief period of membership in a local, Utah-specific political party during his early years, Sutherland became a lifelong Republican. Sutherland was a regular attendee at Republican national conventions, being a supporter of Teddy Roosevelt (1904), William Howard Taft (1908, 1912), Charles Hughes (1916) and Warren G. Harding (1920) – all of whom went on to win the presidency except Taft in 1912 and Hughes in 1916.

Sutherland developed connections to several of these presidents. “Between President Taft and Senator Sutherland there grew up a close and warm friendship,” noted an unpublished biography of Sutherland. This friendship led Taft to consider Sutherland for an opening on the Supreme Court in 1910. Interestingly, after Taft lost his bid for reelection to the presidency in 1912, he would be appointed to become Chief Justice of the Supreme Court in 1921 – just over a year prior to Sutherland’s nomination to the court. His friend Chief Justice Taft would administer the oath of office to newly confirmed Justice Sutherland in October 1922.

Sutherland had been a friend of Harding since 1912 and the two had been colleagues in the U.S. Senate between 1915 and 1916. As one magazine article reported, “in 1920, when General Leonard Wood and Governor Frank Lowden were occupying the spotlight at the Republican national convention, Sutherland shrewdly became one of the first to advocate the nomination of Warren G. Harding.” When Harding was nominated as the Republican candidate for president in 1920, Sutherland “made his headquarters at Marion, Ohio [where Harding’s home was located] and became the political adviser of the Republican candidate.” Sutherland’s position of trust with Harding was so high that he was described as “nearer to being the ‘Colonel House’ of the Harding Administration than any other man” – drawing comparisons to the well-known at the time and “most trusted advisor” to President Woodrow Wilson.

Sutherland fulfilled several appointed positions or assignments in the Harding administration, such as the arbitration assignment noted at the beginning of this essay, and was reportedly promised an appointment to the Supreme Court by Harding. When the first of four Supreme Court vacancies that Harding would fill came open in 1921, the promise to Sutherland complicated matters because Harding had also promised a Supreme Court position to Taft. After Harding briefly considered waiting for a second Supreme Court vacancy to occur so he could nominate both Taft and Sutherland together, the appointment went to Taft. But the next year presented Harding with his second court vacancy, which he filled by appointing Sutherland.

Sutherland’s same-day nomination and confirmation to the Supreme Court seems at first blush to simply to be an artifact of a different political era – as indeed it was. But considering the fact that Sutherland’s path from nomination to confirmation was exceptional not only for his own day, but for the entire history of Supreme Court nominations, it was clearly also the product of something more.

In reality, Sutherland’s nomination was also a culmination of factors that aligned to produce a justice who did not even need to be in the country to be quickly nominated and easily confirmed to the highest court in the land. Sutherland’s strong political connections put him in a place to be nominated to the court. His legal and congressional accomplishments facilitated the Senate support he would need for a fast-tracked confirmation. This distinctive outcome seems fitting for one of the most impressive Utahns in history.

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