Sons of Ohio: William Rufus Day, Nepotism, and his Law Clerks

Abstract

Sons of Ohio: William Rufus Day, Nepotism, and his Law Clerks CLARE CUSHMAN Justice William R. Day and his wife, Mary Schaefer Day, had four strapping sons who carried on the Day family tradition and became distinguished lawyers: William Louis Day (1876-1936), Luther Day (1879-1965), Stephen Albion Day (1882-1950), and Ru­ fus Spalding Day (1884-1963). During his nineteen years serving on the Court, Justice Day, a devoted father, would invite three of his sons to live in his home and serve as his clerk: Luther for two terms, Stephen for one term before passing him on to Chief Justice Melville Fuller for a second term, and Rufus for nine terms in two stints: 1907-1910 and 1917-1922.' These acts ofnepotism bear scrutiny as Day is the only justice to have engaged his children as clerks, with the ex­ ception of John Marshall Harlan, who hired his youngest son, John Maynard Harlan, to be his first clerk in 1878—and also persuaded Fuller to take his second son, John S. Harlan, to briefly become Fuller’s first clerk in 1888.2 Moreover, Rufus Day maintained an active law practice, including appealing cases to the Supreme Court, while serving as his father’s clerk, a double transgression of nepotism and conflict of interest that merits closer examination. Nature of the Clerkship Justices hiring family members as staff would raise eyebrows today, but in the early 1900s there were no consistent guidelines about how to recruit or whom to select as clerks. Congress had not appropriated funds for Supreme Court clerks until 1886, when it finally recognized that Court members were severely overburdened; prior to that justices had paid their “private secretaries” out of their own pockets. The yearly salary of a Supreme Court “stenographic clerk” rose from S1,000 to $ 1,600 in 1895 and continued at that meager level until 1911? When Day was appointed in 1903, most justices hired men who were working as stenographers in the federal government and had attended or were enrolled in local law schools at night. Because justices worked out of their homes until the Supreme Court building opened in JUSTICE DAY, NEPOTISM AND LAW CLERKS 237 1935, there was no centralized or regularized practice for recruiting these young men. New justices were often content to inherit clerks from their predecessors. Moreover, most pre-1935 justices used their clerks as stenographers, proofreaders, typists, chauf­ feurs, and errand-goers, although notable exceptions were Horace Gray, Oliver Wendell Holmes, Jr., and Louis D. Brandeis, who actively recruited top Harvard Law School graduates and gave them substantive legal work to perform. As long as the duties were mainly clerical, the selection process remained fairly uncompetitive and under­ scrutinized. Nonetheless, these early “steno­ graphic clerks” were keenly aware that being employed by a Supreme Court justice would help advance their legal careers.4 Family Tradition, Family Culture Justice Day would have favored his sons as clerks because his family had produced several illustrious judges, and he wanted to give the sons an entree into the elite legal world so they could carry on the family tradition. It was quite a legacy to follow: he named one of his sons after Luther S. Day, his father, who served as chiefjustice of the Ohio Supreme Court from 1866 to 1875, and another after Rufus P. Spalding, his maternal grandfather, who served as associate justice on that court from 1849 to 1852. A maternal great-grandfather had served as chiefjustice of the Connecticut Supreme Court.5 To give them the best start, Day sent his sons to elite prep schools and later arranged for them to have apprenticeships “reading law” at his old law firm in Canton, Ohio. During his tenure on the Court, Justice Day was known for his “exceptionally” happy family life.6 A devoted husband and father, he was a quiet homebody who did “not care for society, in the ordinary acceptance of the word. To social life in Washington he preferred rather his chosen sphere of action at home.”7 Day had been a trial lawyer in Canton for twenty-five years, but had left pri­ vate practice for government service in 1896...