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                          The Judiciary Act of 1801, Judges  

                           Looking at the Circuit Court Judicial Appointees 

I mentioned in the earlier essays that the Judiciary Act of 1801 provided for the creation of 16 new Circuit Judgeships in six circuit courts around the country. Jeffersonians cried "Foul!" at the creation of these positions, for it seemed obvious that the Federalists wanted to prolong their reign in the Judiciary once they had been thrown out of the White House and Congress by the people. When you examine the actual names of those nominated by Adams and confirmed by the Senate, you have, in general, a much more moderate bunch than might have been imagined. That, at least, is the thesis of Kathryn Turner, "The Midnight Judges," 109 U Pa L Rev. 494 (1961). A more recent treatment of these appointments by Bruce Ackerman in The Failure of the Founding Fathers (2005), 130ff., tends to emphasize the familial and highly political nature of the appointments. 

In this essay I will provide a chart of the names, commenting on a few of them so as to give you a little knowledge of some of them. Thus, the purpose of this essay is to show how probing behind the "one liners" in textbooks or lectures on "midnight judges" (which, as I have mentioned, is a moniker only applying to District of Columbia Justices of the Peace, appointed under the Act of February 27, 1801. My hope is that this list and comment will brings you a tiny bit deeper into understanding the political and judicial process of nearly 220 years ago. Perhaps you will be inspired to search out the world of one or more of these men. 

                                    The Adams Family of Circuit Court Judges 

Circuit/Name                                        Date Confirmed                             State

 

 

1st Benjamin Bourne                                    2/20/01                                                  RI

1st John Lowell                                             2/20/01                                                  MA                      

1st Jeremiah Smith                                       2/20/01                                                  NH

2nd Egbert Benson                                      2/20/01                                                 NY

2nd Samuel Hitchcock                                 2/20/01                                                 VT

2nd Oliver Wolcott                                        2/20/01                                                CT

3d Richard Bassett                                        2/20/01                                                 DE

3d William Griffith 3d                                    2/20/01                                                  NJ

Jared Ingersoll (declined to serve...)            2/20/01                                                 PA

3d Wm. Tilghman (replacement)                   3/3/01                                                   PA

4th Philip Barton Key                                     2/20/01                                                 MD

4th Charles Lee (declined to serve)              2/20/01                                                 VA

4th George K. Taylor                                      2/20/01                                                 VA

4th Charles Magill (replacement)                   3/3/01                                                   VA

The  Fifth Circuit presents a problem because the Judges were confirmed by the Senate but they either refused to serve (Wikipedia article) or didn't receive their  commissions by the time of Jefferson's inauguration (other sources). Hence, they didn't serve. Jefferson, therefore, got a chance to name his own Circuit Judges to these positions after his March 4 inauguration. So, even though Adams created 16 new Circuit Judges, only 13 of them were actually his appointees-- three each from the First-Fourth Circuits and the Sixth Circuit Judge. Because of the problem with the Fifth Circuit Judges, getting clear on the Adams and Jefferson appointees is hard.  I still am missing a judge from the list below. First, the Adams appointments, who never served:

5th Thomas Bee (never served)                    2/24/01                                                   SC

5th Joseph Clay, Jr. (never served)               2/24/01                                                   GA

5th John Sitgreaves (never served)              2/24/01                                                    NC

Thomas Jefferson nominated the following men: 

5th Henry Potter                                      Recess app't 5/9/01; Appointed 1/6/02       NC

5th Theodore Gaillard (declined to serve)   Recess app't 5/9/01

5th Dominic A Hall                                  Recess app't 7/1/01; Appointed 1/6/02         SC

5th Edward Harris (fill vacancy left by Potter, who left on 4/7/02)  Appointed 5/3/02

Who is the third judge?

6th William McClung                                                      2/24/01                                                       KY

                                            Commenting on Some Appointees 

Though each of these men was, no doubt, loved by his mother, some are more worthy of comment than others. The most "notorious" of the appointments was probably that of Oliver Wolcott of CT. He had been Secretary of the Treasury under Adams, but when the "heat" was on him (suspicion of fraud and mismanagement at Treasury), a sudden fire at the Treasury Department occurred under his watch. A Congressional committee exonerated him for any blame in the fire--"there is no evidence whatever, on which to found a suspicion of its originating in negligence or design. . ." but he then resigned from the Administration. Though CT had able lawyers waiting in the wings, Adams appointed him to the 2nd Circuit, despite the fact that he had never practiced law and that it had been 20 years since he left Tapping Reeve's law school in Litchfield, CT. 

Then there were the "familial" appointments. Both George Keith Taylor of VA and William McClung of KY were cousins of Secretary of State/Chief Justice John Marshall. The latter appointment is significant because frontier KY was heavily Republican and McClung was of a fairly small minority of KY Federalists. One of KY's senators, who had just been defeated in a re-election campaign, was Federalist Humphrey Marshall--also a cousin of John Marshall. When you consider that Thomas Jefferson and John Marshall were also related by birth, through the Randolph clan, you wonder, in fact whether large swaths of the political gatherings in the early Republic were just family reunions.

Most often a person got an appointment because he was close to a person who had the "ear" of John Adams. A case in point is Delaware's Richard Bassett. He was the father-in-law of Representative James Bayard, the one who was contemplating ​breaking the "logjam" in the Presidential balloting. In fact, the nomination of this father-in-law went forward the day after he withheld his vote. Already on Feb. 10, before the Judiciary Act bill had yet been signed by Adams, Bayard wrote to Bassett: 

     "If it is good news I can assure you of a seat upon the Bench of the Circuit Court.                2,000 dollars (the salary of such a judge) are better than anything Delaware can give        you, and not an unpleasant provision for life. . ."

Thus, it is probably more accurate to say that the judicial appointees reflected generally a Federalist philosophy but their primary claim to fame was that they knew a Federalist politician of "weight" in the Congress. This resulted in some very fine judges, to be sure; but it probably yielded a few more of the "political" appointments than would have been made had Adams more time to deliberate. As it was, these appointments had to be made post-haste. 

                                                                   Conclusion 

Six of the 16 Circuit Judges had previously been District Judges; thus new District Court appointments also had to be made. What is ironic in all of this, as Ackerman cleverly points out, is that two active Federalist Senators, Elijah Paine of VT and Ray Greene of RI, accepted district court judgeships--probably for the money, but were then replaced by Republican senators. This resulted in the Senate's going from a Federalist margin on March 3 to, ultimately, 17-15 in favor of the Republicans (there was also one other Federalist Senator replaced by a Republican, for other reasons). 

Much more could be said of the judicial appointments, but it gives you the flavor of the action taken by Congress and the appointments to the bench. When Jefferson took office on March 4, however, he wanted the new Congress to examine the appointments and the Act itself. But that is the subject for the next essay. 

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