A Supreme shift

Religious intolerance altered Campbell’s career trajectory

Judging History

Michael B. Hyman

Justice Michael B. Hyman sits on the Illinois Appellate Court, 1st District. He is a former president of both The Chicago Bar Association and the Illinois Judges Association.
mhyman@illinoiscourts.gov

January 2020

When President Lyndon B. Johnson convinced Justice Arthur Goldberg to step down from the Supreme Court, Johnson settled on a few replacement candidates. Among them was Judge William J. Campbell of the Northern District of Illinois. But it was not to be for the 60-year-old Campbell, a friend of the president.

The reason Johnson chose Abe Fortas instead of Campbell reveals the fragility of a core tenet of our democratic system — religious tolerance.

Fifty-five years ago, Johnson passed over Campbell because he was Catholic. Appalling, then and now, religious tolerance too often gives way to religious intolerance, notwithstanding that the nation idealizes and extols religious freedom.

Here’s what happened.

Johnson decided he needed a political ally on the Supreme Court. At Johnson’s urging, Goldberg, a Chicagoan appointed by President John F. Kennedy just three years earlier, “reluctantly” (Goldberg’s word) resigned. Goldberg became U.S. ambassador to the United Nations.

One nominee was Campbell, the son of a Scottish wool merchant, from Chicago’s West Side.

Campbell attended Loyola University School of Law. He joined the Illinois bar in 1927. After a stint with an insurance company, Campbell and a Loyola classmate, William O. Burns, formed a law firm in 1930. A year earlier, Campbell co-founded the Catholic Youth Organization.

One of Campbell’s earliest and most significant clients was the Roman Catholic Archdiocese of Chicago and its auxiliary bishop. According to Campbell, Cardinal George Mundelein, who hired him, “didn’t give a hoot what your religion was,” only merit, although some in the church complained about Campbell’s mother’s strict Baptist views.

Campbell got involved in the Chicago Democratic Party and headed the local Young Democrats, an initiative of then-presidential candidate Franklin D. Roosevelt. Campbell met Roosevelt through the CYO. Although not Catholic, Roosevelt belonged to the New York chapter and tapped him to organize Young Democrats in 46 states, which Campbell accomplished.

The 1932 Democratic Convention was held in Chicago, where Roosevelt had weak support. When Roosevelt and his delegation couldn’t get a march permit, an undeterred Campbell, arranged with the local bishop to escort the illegal march. Behind the bishop paraded the CYO band, Roosevelt in a wheelchair and the delegation. At every intersection police stopped the throng. But, after a few words from the bishop, the officers let the entourage pass. The march received considerable attention in the press.

In 1935, Roosevelt named Campbell to organize the National Youth Administration, and, in 1938, as the U.S. attorney for the Northern District of Illinois. There, he had a hand in prosecuting Al Capone for income tax evasion and several Democratic Party operatives for taking money from bookies to operate in city wards.

After two years, and possibly due to Campbell’s politically tinged cases, Congress created a vacancy on the U.S. District Court for Northern Illinois with Campbell its intended recipient. Only 35 years old, Campbell was the youngest judge appointed to the federal bench at that point.

Eventually, Roosevelt wanted Campbell to move to the U.S. Court of Appeals. Campbell declined.

“I convinced him that where I was as a district judge, I was my own boss,” Campbell recalled. “[I]f I am on the Court of Appeals, I am not.”

He also wanted to continue assisting the president with the drafting of New Deal legislation.

President Harry Truman likewise approached Campbell to become a circuit judge. Again, Campbell demurred. In 1959, Campbell became chief judge for the Northern District of Illinois, a post he would hold until 1970, when he took senior status.

In 1965, Johnson had a shortlist to replace Goldberg. Campbell seemed a perfect fit. Johnson and Campbell were friends since the 1930s and Campbell’s Democratic credentials were above reproach. Nevertheless, Johnson rejected Campbell. He did not want another Catholic, in addition to Justice William J. Brennan Jr.

“Although I knew Johnson intimately and personally,” Campbell said, “he was bigoted enough not to want two Catholics on the Supreme Court.”

Campbell’s name came up anew in 1968. Chief Justice Earl Warren worried that Nixon might win the presidency, informed Johnson that he would retire so he, not Nixon, could replace him. Johnson wanted Justice Abe Fortas for chief. But who would take Fortas’ spot? Illinois Republican Sen. Everett Dirksen suggested Campbell, knowing his history with Johnson.

This time the president dismissed Campbell not only because he still objected to having two Catholics on the court, but, in addition, he “want[ed] a man who will be here for a while.” By the way, Johnson nixed returning Goldberg to the court also on religious grounds — it would mean “two Jews” (Fortas being the other).

A conservative filibuster, however, caused Johnson to withdraw Fortas’ nomination. The following year, Nixon named Warren Burger.