Judiciary Act of 1800 III: Adams' Appointments to the Circuit Court Bench

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 to them it seemed as if 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, in fact, is to show how probing behind the "one liners" in textbooks or lectures on "midnight judges" brings you into deeper understanding of the political and judicial process of 206 years ago. Perhaps you will be inspired to search out the world of one or more of these men.

The Adams Family of Judges

Circuit/Name

1st Benjamin Bourne
1st John Lowell
1st Jeremiah Smith

2nd Egbert Benson
2nd Samuel Hitchcock
2nd Oliver Wolcott

3d Richard Bassett
3d William Griffith
3d Jared Ingersoll
(refused to serve...)
3d Wm. Tilghman

4th Philip Barton Key
4th Charles Lee
(did not serve)
4th George K. Taylor
4th Charles Magill

5th Thomas Bee
(never served)
5th Joseph Clay, Jr.
(never served)
5th John Sitgreaves
(never served)

The 5th Circuit Commissions weren't timely received. Ths. Jefferson nominated the following men:

5th Henry Potter
5th Theodore Gaillard
(did not serve)
5th Dominic A Hall
Edward Harris
(did not serve)

6th William McClung

Date Confirmed

2/20/1801
2/20/1801
2/20/1801

3/3/1801

2/20/1801
2/20/1801

2/20/1801
3/3/1801

2/24/1801

5/9/1801
5/30/1801

7/1/1801
5/3/1802

2/24/1801

State

RI
MA
NH

NY
VT
CT

DE
NJ
PA

MD
VA

VA
VA

NC
SC

SC
NC

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" (Who cares about dispensing justice...?).

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. The Fifth Circuit appointees never were able to take office (two of whom were Republicans anyway).

Conclusion

Six of the 16 Circuit Judges had previously been District Judges; thus those 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 judgships--probably for the money, but were then replaced by Republican senators. This resulted in the Senate's going from 18-14 in favor of the Federalists on March 4 to, ultimately, 17-15 in favor of the Republicans (there was also one other Federalist Senator replaced by a Republican, for other reasons).

Oops. The Federalists dropped the ball on that one, as their party gradually disappeared down the drain.

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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