George Washington’s Appointments to the Supreme Court

Abstract

George Washington’s Appointments to the Supreme Court MAEVA MARCUS When a Supreme Court vacancy is announced today, we know that the competition for that spot will be keen and that we all have different expectations as to who the next Justice will be and what criteria should be critical in the choice:judicial philosophy; political persuasion; intellectual prowess; previous judicial experience; diversity with regard to race, gender, and religion; or geographical distribution. And every President lucky enough to have the opportunity to nomi­ nate a Justice will invest a good deal oftime and energy in making his choice in the hope that that person will leave his or her mark on our most respected political institution. With the ubiquity of the media in the late twentieth century, we seem to be very much involved with the appointment process from start to finish. But put yourself back into the last decade ofthe eighteenth century when there was no radio or television, when a news story could take two months to travel from one end of the country to the other. Even more problematic, imagine what it would be like to contemplate making appointments to an institution as yet un­ formed. When President Washington took up the reins ofgovernment in 1789, all he knew was that the Constitution mandated the creation ofa Supreme Court, and that thejudges ofthat court, however many there might be, would have life tenure and a salary, as yet unspecified, that could not be diminished.1 So the first order of business for the new Congress was to create a federal judicial sys­ tem. Even before President Washington was inaugurated, the Senate took up as its initial task the organization ofthe judiciary. Within a few months, the basic features ofwhat would become the nation’s judicial system emerged. The Supreme Court would consist of a Chief Justice and five Associate Justices, who would hold two sessions of the Court, at the capital, beginning on the first Monday in February and the first Monday in August.2 244 JOURNAL OF SUPREME COURT HISTORY Besides the Supreme Court, there would be two levels ofinferior courts. Federal district courts were created for each of the states, and each court would have its ownjudge who lived in the district and had jurisdiction over admi­ ralty and maritime causes and minor federal crimes.3 Atthe next level were the circuit courts, which, unlike our Circuit Courts ofAppeal to­ day, were mainly courts of original jurisdic­ tion—trial courts—formajor federal crimes and civil cases of higher monetary value. Appeals made up a very small part oftheir dockets. The judiciary bill established a circuit court in each state and grouped the states into three circuits: the eastern, the middle, and the southern. The bill provided for no judges to be appointed to these courts. Instead, each circuit court would be presided over by two Supreme Court Jus­ tices and the districtjudge for the state in which the court met, and would convene twice a year, once in the spring and once in the fall. You may be wondering why the Supreme Court was initially composed ofsix Justices— an even number. (Our Court wouldn’t function too well today with an even number.) Congress, being practical, wanted two Justices for each circuit, and, at every Term ofthe Supreme Court until the law was changed, two Justices were assigned. The decision to have no exclusive circuit court judges flowed from Congress’s desire to limitthe expense ofa federaljudiciary. But Congress claimed to have more positive reasons as well: sending Supreme Court Jus­ tices throughout the nation would be good for the new government and good for all the citi­ zens. According to Senator William Paterson, circuit courts would benefit the populace by carrying “Law to their Homes, Courts to their Doors.”4 But the Justices detested their circuit du­ ties and spent much time lobbying Congress to change the system. Attending circuit courts twice a year in several states in addition to two sessions of the Supreme Court at the seat of government kept the Justices away from home for the better part ofthe year. Traveling to the Supreme Court in the two worst months...