As I had some excerpts on the forum side, I thought I would make some extended comment over the story today on law.com that argues that John G. Roberts, Jr. will be the 18th Chief Justice of the United States and not the 17th as mentioned in his formal nomination to the Senate.
Briefly, Justice William Cushing was one of the original appointments to the initial 6-man Supreme Court, whose justices also had to ride circuit (forerunner to today’s eleven appeals courts), acting as an appeals court composed of two Justices of the Surpreme Court and the district judge where the appeal was heard, with the caveat that the district judge could not rule on appeal on a case he heard originally. There was no such pre-emption on Supreme Court justices.
This “riding circuit” would last well past Cushing’s tenure on the court (his death in 1810 ended it), and it was often a reason for short tenures on the court. As it stood, Cushing was the only original Justice to make it into the John Marshall era. (until reading the law review article, I had not realized that Adams had originally appointed the first CJOTUS, John Jay, to the position again upon Ellsworth’s resignation. The Senate confirmed Jay, but he declined, resulting in Adams’ nomination of John Marshall)
A few excerpts below:
QUOTE
In a 76-page law review article, set to be published next spring, Davies makes a forceful argument that William Cushing, a mostly forgotten associate justice appointed by President George Washington, in fact served as chief justice for two days in February 1796 before resigning and returning to the associate justice seat he had held since 1790.
QUOTE
In any event, Washington next turned to Cushing, sending his nomination to the Senate on Jan. 26, 1796. The Senate confirmed him unanimously the next day without hearings, and Washington signed the commission. It all happened without Cushing’s knowledge, apparently, because he only learned of the appointment when Washington introduced him at a diplomatic dinner as chief justice.
QUOTE
What happened next, however, is disputed — which is why most history books do not list Cushing as a chief justice. The rough minutes of the Supreme Court’s Feb. 3-4 sittings list Cushing as chief justice, though those two words were crossed out at a later date, according to Davies. Cushing was having serious cold feet about serving as chief, partly because of the earlier turmoil. “He had cancer and thought he was going to die. He didn’t want to be in the middle of a firestorm,” Davies says.
Cushing soon sent a letter to Washington, in which he returned the commission, citing his “infirm & declining state of health.” By Feb. 5, the minutes of Court proceedings lumped Cushing in with the “associate judges.” He continued serving as associate justice until he died in 1810, at age 78.
http://www.law.com/jsp/article.jsp?id=1127207113073
If John Rutledge, a recess appointee to CJOTUS that was rejected by the Senate, is among the recognized for a four month period, then any time served in that official capacity ought to be recognized. I have not yet read Ross Davies’ 76 page paper, but have found the link on the University of Toledo Law Review Website (thank google for making it easy). In short, the table of contents for the article PDF indicate that Mr. Davies lays out what it takes to be CJOTUS, and what oaths Mr. Cushing took.
He goes on to examine contemporary appointments, and the use of resigned vs. declined in their nomination and confirmations. He presents evidence that both George Washington and the Senate considered Cushing CJOTUS — as his replacement’s, Oliver Ellsworth, nomination mentioned Cushing’s resignation.
In short, Davies presents a compelling argument as to why Cushing should be remembered as the nation’s 3rd Chief Justice, even if only for two days. A bill to effect such recognition was proposed in 1857, but lacked the documentary record Mr. Davies has amassed.
Fresh Cracks...