CiteNow!Download PDF

Document Outline
Party Lines
Seeking a Seat
States of Origin
Features

George Washington, as the first president, had the responsibility of choosing the original six justices of the Supreme Court. The type of men he chose and the reasons he chose them foreshadowed the process of selection carried out by his successors.

In naming the first justices, Washington paid close attention to their politics, which at that time primarily meant loyalty to the new Constitution. Of the six original appointees, three had attended the Philadelphia convention that formulated the Constitution, and the other three had supported its adoption. John Jay, the first chief justice, was coauthor with Alexander Hamilton and James Madison of The Federalist Papers, a series of influential essays published in New York supporting ratification of the Constitution. During his two terms of office, Washington had occasion to make five additional Supreme Court appointments. All were staunch supporters of the Constitution and the new federal government.

Another of Washington's major considerations was geography. The new states were a disparate group that barely had held together during the fight for independence and the confederation government of the 1780s. To bind them more closely together, Washington consciously tried to represent each geographical area of the country in the nation's new supreme tribunal.

His first six appointees were three northerners—Chief Justice John Jay from New York and Associate Justices William Cushing of Massachusetts and James Wilson of Pennsylvania—and three southerners—John Blair of Virginia, James Iredell of North Carolina, and John Rutledge of South Carolina. The five later appointees were Oliver Ellsworth of Connecticut, Thomas Johnson and Samuel Chase of Maryland, William Paterson of New Jersey, and Rutledge, appointed a second time. By the time Washington left office, nine of the original thirteen states had achieved representation on the Supreme Court.

With a total of eleven, Washington still holds the record for the number of Supreme Court appointments made by any president. The second highest total—nine—belongs to President Franklin D. Roosevelt, the only president to serve more than two terms. Roosevelt also came closest since Washington to naming the entire membership of the Court—only two justices who served prior to the Roosevelt years were still on the Court at the time of his death. Roosevelt elevated one of them, Harlan Fiske Stone, from associate justice to chief justice.

With six each, Presidents Andrew Jackson (1829–1837) and William Howard Taft (1909–1913) appointed the next highest number of justices. Taft holds the record for a one-term president. Next are Abraham Lincoln (1861–1865) and Dwight D. Eisenhower (1953–1961) with five each.

Four presidents, William Henry Harrison, Zachary Taylor, Andrew Johnson, and Jimmy Carter, made no appointments to the Supreme Court. Harrison (1841) and Taylor (1849–1850) both died in office before any vacancies occurred. Johnson (1865–1869), who served just six weeks short of a full term, had no chance to make a Court appointment because of his rancorous political battle with Congress over Reconstruction. So bitter did the struggle become that Congress in effect took away Johnson's power of appointment by passing legislation in 1866 to reduce the Court from ten to seven members as vacancies should occur.

The legislation was occasioned by the death of Justice John Catron in 1865 and Johnson's nomination in 1866 of Henry Stanbery to replace him. The Senate took no action on Stanbery's nomination and instead passed the bill reducing the size of the Court. When Justice James Wayne died in 1867, the membership of the Court automatically dropped to eight.

In 1869, when the Republicans recaptured the White House, Congress passed legislation increasing the Court to nine seats and allowing President Ulysses S. Grant to make a nomination.

Carter is the only full-term president who has been denied the opportunity to nominate a member of the Court. No deaths or resignations occurred on the Court during his term.

Party Lines

As political parties became an established fact of American political life, the major parties sought to promote the appointment to the Court of members who would espouse their view of what the federal government should and should not do. Just as Washington had appointed supporters of the new Constitution, so most presidents have selected nominees with whom they felt comfortable—philosophically and politically.

It is the exception when a president goes to the opposite political party to find a nominee. The first clear-cut instance of a president of one party appointing a member of the other to the Supreme Court was Lincoln, a Republican, selecting Democrat Stephen J. Field of California in 1863. President John Tyler, who was elected vice president as a Whig in 1840, appointed Democrat Samuel Nelson to the Court in 1845, but by then Tyler was no longer identified with either major political party.

After Lincoln's example, Republican presidents occasionally appointed Democrats to the Court. President Benjamin Harrison selected Howell Jackson in 1893; Warren G. Harding nominated Pierce Butler in 1922; Herbert Hoover chose Benjamin Cardozo in 1932; Eisenhower named William J. Brennan Jr. in 1956; and Richard Nixon appointed Lewis F. Powell Jr. in 1971. Republican William Taft was the only president to appoint more than one member of the opposite party to the Court. Three of his six nominees to the Court were Democrats—Edward D. White, whom he elevated from associate justice to chief justice, and Horace Lurton and Joseph R. Lamar, southern Democrats appointed in 1909 and 1910, respectively.

The only two Democrats ever to appoint Republicans to the Supreme Court were Franklin D. Roosevelt and Harry S. Truman. Roosevelt elevated Justice Stone, a Republican, to chief justice in 1941. Truman appointed Sen. Harold H. Burton, R-Ohio, an old friend and colleague from Truman's Senate days, in 1945.

Seeking a Seat

Before a president decides on a nominee, a process of balancing and sifting usually goes on, sometimes involving many participants and sometimes only a few. Occasionally, however, a president's choice is made by overwhelming pressure for a particular nominee.

One of the more dramatic instances of this process occurred in 1853 when President Franklin Pierce nominated John A. Campbell of Alabama. Campbell was a forty-one-year-old lawyer who had such a brilliant reputation that the justices decided they wanted him as a colleague. The entire membership of the Court wrote to Pierce requesting Campbell's nomination. To emphasize their point, two justices delivered the letters in person. Pierce complied, and Campbell was confirmed within four days.

In 1862 President Lincoln was looking for a new justice from the Midwest. The Iowa congressional delegation began pressing for the appointment of Samuel Miller, a doctor and lawyer who had helped form the Iowa Republican Party and who had a strong reputation for moral and intellectual integrity. The movement grew rapidly until 129 of 140 House members and all but four senators had signed a petition for Miller's nomination. With such massive and unprecedented congressional support, Miller received Lincoln's approval despite his lack of any judicial experience. He became the first justice from west of the Mississippi River.

In 1932 a strong national movement began for the appointment of Benjamin Cardozo, chief judge of the New York Court of Appeals, to the Supreme Court. Cardozo was a Democrat, while the president who was to make the appointment, Herbert Hoover, was a Republican. Furthermore, Cardozo was Jewish and there was already one Jew on the Court, Louis D. Brandeis. Under these circumstances, it was considered unlikely Hoover would make the nomination.

But Cardozo's record was so impressive that it created a groundswell of support. Deans and faculty members of the nation's leading law schools, chief judges of other state courts, labor and business leaders, and powerful senators all urged Hoover to choose Cardozo. Despite his desire to appoint a western Republican, Hoover finally yielded and nominated Cardozo, who was confirmed without opposition.

States of Origin

The tradition begun by George Washington of weighing geographic factors in appointing justices continued for more than a century. It was reinforced by the justices' duty under the Judiciary Act of 1789 to ride and preside over circuit court sessions. Presidents not only strove for geographic balance in their appointments but also considered it important that each justice be a native of the circuit over which he presided.

The burdensome attendance requirement was curtailed by legislation during the nineteenth century until it became optional in 1891 and abolished altogether in 1911. In the twentieth century, geography became a less important consideration in Supreme Court nominations, although as recently as 1970 President Nixon made an issue of it when the Senate refused to confirm two southerners—Clement Haynsworth Jr. and G. Harrold Carswell—to the Court. Nixon claimed the Senate would not confirm a conservative southerner and turned to Harry A. Blackmun of Minnesota instead.

In its heyday the geographic factor was sometimes almost sacrosanct. The longest-lasting example, which endured from 1789 to 1932, was the so-called New England seat, usually occupied by an appointee from Massachusetts. There was also a seat for a New Yorker from 1806 to 1894 and a Maryland-Virginia seat from 1789 to 1860.

Geography had strong political ramifications as well, especially for the South. With the growth of sectional differences, particularly over the slavery issue before the Civil War, the South felt itself to be on the defensive. One of the ways it sought to protect its interests was to gain a majority on the Supreme Court. And, indeed, in 1860 five of the nine justices were from slaveholding states.

With the coming of the Civil War, the sectional balance of power shifted. Four of the five southern justices died between 1860 and 1867, and another—Justice John Campbell of Alabama—resigned to join the Confederate cause.

None of these justices was replaced by a southerner, and by 1870 every Supreme Court seat was held by a northerner or westerner. But with the gradual decline of bitterness over the war, southerners again began to reappear on the Court. President Rutherford B. Hayes, who sought to reconcile relations between the North and South, made the first move by appointing William B. Woods of Georgia in 1880. Woods was not a native southerner; he had moved south after the Civil War. But despite this “carpetbagger” background, he was never identified with the corruption and profligacy associated with the Reconstruction era. As a federal judge for the Fifth Circuit, in the Deep South, he gained the respect of his neighbors for his fairness and honesty.

The first native southerner appointed to the Court after the Civil War was Woods's successor, Lucius Q. C. Lamar of Mississippi, appointed by President Grover Cleveland in 1888. Lamar had personally drafted the ordinance of secession for Mississippi in 1861 and had served the Confederacy both as a military officer and as a diplomatic envoy to Europe. So his accession to the Court was an even more significant symbol of reconciliation than Woods's appointment eight years earlier.

Thirty-one states have contributed justices to the Supreme Court. New York has by far the highest total with fifteen, two of whom, Charles Evans Hughes and Harlan Stone, served as both associate justice and chief justice. New York is followed by Ohio with ten justices and Massachusetts and Virginia with eight. Several major states have had only one justice, including Texas and Missouri—as have less-populated states such as Utah, Maine, and Wyoming.

Nineteen states, mostly western states with small populations, have never had a native on the Court. Only six of the nineteen are east of the Mississippi River. The largest state never to have had a justice is Florida.

The lack of representation on the Court from some of the less densely populated states resulted in a controversy during the 1950s when North Dakota's outspoken maverick senator, Republican William Langer, began opposing all non–North Dakotan Supreme Court nominees as a protest against big-state nominees. Langer was chairman of the Senate Judiciary Committee during the Eighty-third Congress (1953–1955). In 1954 he joined in delaying tactics against the nomination of Earl Warren as chief justice, managing to hold off confirmation for two months. He continued his struggle until his death in 1959.

Features

Empty Chairs: Vacancies on the Court

Twice in the Court's history a seat has been vacant for more than two years. The longest vacancy lasted for two years, three months, and twenty-three days. During that period the Senate rejected four nominations by two presidents, and a future president, James Buchanan, declined three invitations to the seat.

When Justice Henry Baldwin died on April 21, 1844, John Tyler was president. Elected vice president on the Whig ticket in 1840, Tyler broke with the party after he became president following William Henry Harrison's death in 1841. From then on, he was a president without a party or personal popularity. At the time of Baldwin's death, one Tyler nomination to the Court had already been rejected, and a second was pending. Tyler first offered the Baldwin vacancy to Buchanan, who, like Baldwin, was a Pennsylvanian. When he declined, the president nominated Philadelphia attorney Edward King.

Followers of Henry Clay, however, who controlled the Senate, thought Clay would win the presidency in that year's election, and they voted in June 1844 to postpone consideration of King's nomination and Tyler's pending appointment of Reuben H. Walworth to the second vacancy. Tyler resubmitted King's name in December. Again the Senate refused to act, and Tyler was forced to withdraw the appointment.

By this time, Tyler was a lame-duck president, and Clay had lost the election to Democrat James K. Polk. Nevertheless, in February 1845 Tyler named John M. Read, a Philadelphia attorney who had support among the Democrats and the Clay Whigs in the Senate. The Senate failed to act on the nomination before adjournment, and the vacancy was left for Polk to fill.

Polk had only slightly better luck. After six months in office he offered the position to Buchanan, who again refused it. Another few months passed before Polk formally nominated George W. Woodward to the Baldwin vacancy in December 1845. Woodward turned out to be a hapless choice. He was opposed by one of the senators from his home state, Pennsylvania, and his extreme “American nativist” views made him unpopular with many other senators. His nomination was rejected, 29–20, in January 1846.

Polk asked Buchanan once again to take the seat. Buchanan accepted, but later changed his mind and declined a third time. The president then turned to Robert C. Grier, a district court judge from Pennsylvania who proved acceptable to almost everyone. The Senate confirmed him on August 4, 1846, the day after his nomination.

The second-longest vacancy lasted almost as long as the first—two years, one month, and sixteen days. It occurred when Justice Peter V. Daniel of Virginia died on May 31, 1860. At this point, four of the remaining justices were from the North, and four were from the South. Naturally, the South wanted Buchanan, now president, to replace Daniel with another southerner; the North urged a nomination from one of its states.

Buchanan took a long time making up his mind. In February 1861, nearly eight months after the vacancy occurred, he nominated Secretary of State Jeremiah S. Black, a former chief justice of the Pennsylvania Supreme Court and U.S. attorney general. Black might have proved acceptable to southern senators, but many of them had already resigned from the Senate to join the Confederacy. Although he supported the Union, Black was not an abolitionist, and his nomination drew criticism from the northern antislavery press. Black also was opposed by Democrat Stephen A. Douglas, who had just lost the presidential election to Abraham Lincoln. Finally, Republicans in the Senate were not anxious to help fill a vacancy that they could leave open for the incoming Republican president. Had Buchanan acted earlier, it is likely that Black would have been confirmed. As it was, the Senate rejected his nomination by a one-vote margin, 26–25.

Buchanan made no further attempt to fill the Daniel vacancy. Lincoln, who soon had two more seats on the Court to fill, did not name anyone to the Daniel seat until July 1862—more than a year after his inauguration. His choice was Samuel F. Miller, a well-respected Iowa attorney. Miller's nomination had been urged by a majority of both the House and Senate and by other politicians and members of the legal profession. On July 16, 1862, the Senate confirmed his nomination within half an hour of receiving it.

[] Sources: Henry J. Abraham, Justices and Presidents: A Political History of Appointments to the Supreme Court, 3rd ed. (New York: Oxford University Press, 1992); and Charles Warren, The Supreme Court in United States History, rev. ed., 2 vols. (Boston: Little, Brown, 1926).

The Importance of Being Eastern … or Southern

Throughout the nineteenth century, geography was a prime consideration in the appointment of Supreme Court justices. Presidents found it expedient to have each of the expanding nation's rival sections represented on the Court.

The “New England” Seat

The most notable example of geographic continuity was the seat traditionally held by a New Englander. William Cushing of Massachusetts was appointed an associate justice by President George Washington in 1789. For the next 143 years, that seat was held by a New Englander.

When Cushing died, President James Madison selected Joseph Story of Massachusetts, who served thirty-four years. When he died in 1845, President James K. Polk appointed Levi Woodbury of New Hampshire, a prominent Jacksonian who had served as governor, senator, secretary of the navy, and secretary of the Treasury.

Woodbury's tenure lasted less than six years, and it fell to President Millard Fillmore to find a successor. He chose Benjamin Curtis, another Massachusetts native. Curtis resigned in 1857, and President James Buchanan chose Nathan Clifford of Maine, a former attorney general, to fill the seat.

Clifford served until his death in July 1881, shortly after President James A. Garfield was shot. When Garfield died in September, his successor, Chester A. Arthur, chose Horace Gray, the chief justice of the Massachusetts Supreme Judicial Court. Gray served until 1902 and was succeeded by another chief justice of that court, Oliver Wendell Holmes Jr., appointed by President Theodore Roosevelt.

By the time of Holmes's appointment, however, the significance of geography had declined, and it was mostly accidental that Holmes came from Massachusetts. Nevertheless, his selection extended for another thirty years the tradition of the “New England” seat. After Holmes resigned in 1932, President Herbert Hoover ended the Supreme Court's longest-lasting geographic tradition by naming Benjamin Cardozo, chief judge of New York State's highest court, to the seat.

The “New York” Seat

The appointment of Justice Henry Brockholst Livingston by President Thomas Jefferson in 1806 began a tradition of a New York seat that continued for almost ninety years.

Livingston served until his death in 1823. President James Monroe then chose Smith Thompson of New York, his secretary of the navy. Thompson served for twenty years. His death in 1843 came at an inopportune moment politically: President John Tyler was disliked by both Democrats and Whigs and had little political leverage. His attempts to choose a successor to Thompson met with repeated failure. Finally, just before leaving office in 1845. Tyler found a New Yorker acceptable to the Senate, Justice Samuel Nelson, who served until 1872. After Nelson's retirement, two more New Yorkers held the seat, Ward Hunt from 1873 to 1882 and Samuel Blatchford from 1882 to 1893. But then a bitter quarrel between New Yorkers ended the tradition.

The New York antagonists were President Grover Cleveland and Sen. David B. Hill, old political enemies. Cleveland twice nominated a New Yorker for the post, and twice Hill used senatorial courtesy to object to the nominees. In both cases, the Senate followed its tradition of honoring a senator's objection to a nominee of his own party from his home state and rejected Cleveland's choices. On his third try to fill the vacancy, Cleveland abandoned New York and chose Sen. Edward D. White of Louisiana, who was confirmed immediately by his colleagues.

The “Virginia-Maryland” Seat

Virginia and Maryland shared representation on the Court from 1789 until the Civil War. John Blair of Virginia, appointed by Washington, was succeeded by Samuel Chase of Maryland. After Chase's death in 1811, another Marylander, Gabriel Duvall, was given the seat. He resigned in 1835, and the seat went back to Virginia, with Philip Barbour holding it from 1836 to 1841, and Peter V. Daniel from 1841 to 1860. The Maryland-Virginia tradition was ended when President Abraham Lincoln appointed Samuel Miller of Iowa as Daniel's successor.

 

Document Citation
2 David G. Savage, The President Shall Appoint …, in Guide to the U.S. Supreme Court 1051-55 (5th ed., 2011), http://library.cqpress.com/scc/gct5v2-1180-57531-2237458.
Document ID: gct5v2-1180-57531-2237458
Document URL: http://library.cqpress.com/scc/gct5v2-1180-57531-2237458