Outrage swept the nation after President John Adams released dispatches from Paris detailing French agents’ refusal to meet with American commissioners unless certain preliminary demands were met (the so-called XYZ Affair—I’ll post pictures of those dispatches later). George Washington received word that he was being considered to command American troops in case the French sent an expeditionary force across the Atlantic. He wrote Alexander Hamilton on May 27, 1798 that “if a crisis should arrive when a sense of duty, or a call from my Country, should become so imperious as to leave me no choice, I should prepare for the relinquishment [of personal freedom], and go with as much reluctance from my present peaceful abode, as I should do to the tombs of my Ancestors.”
In being prevailed upon to make Hamilton America’s top military figure, Adams detected “a nefarious plot to exalt a schemer who might well use the army as an instrument of self-aggrandizement and tyranny,” as James Flexner wrote. He instead nominated the aged Washington to be “Lieutenant General and Commander in Chief of all the Armies raised or to be raised in the United States”:
Washington hadn’t been directly consulted beforehand, and the nomination caught him off guard. Although grateful to Adams for this “new proof of public confidence, and the highly flattering manner in which you have been pleased to make the communication,” he also confessed his “earnest wish, that the choice had fallen on a man less declined in years, and better qualified to encounter the usual vicissitudes of war.”
In my zeal to sleuth out any constitutional issues these documents might raise, I couldn’t help but notice that Adams, who was to be “Commander in Chief of the Army and Navy of the United States” for the entirety of his presidential term, nominated another to be “Commander in Chief” of the nation’s “Armies.” Is Adams merely using familiar phraseology to describe the highest-ranking military position he’s entitled to fill, or does “Commander in Chief” have some constitutional significance here? Did Adams really intend to delegate the presidential commander-in-chief power to his predecessor? If this happened today, would anyone have standing to challenge the delegation’s constitutionality?
I saw this document on the second day of my internship, during my first visit to the Vault. Never has an orientation gone so well.
Not all six inaugural SCOTUS nominees served. Robert Harrison declined the honor in order to retain his position as Chancellor of Maryland. John Rutledge accepted and was granted his commission, but he never bothered to travel north for a session of the Court. He resigned in 1791 in order to become Chief Justice of the South Carolina Court of Common Pleas. He hadn’t heard a single case in spite of nearly two years of “service.” (This was remedied four years later when Rutledge was Washington’s chosen recess appointee following Chief Justice Jay’s resignation.)
Presidents Taft and FDR each made three Supreme Court nominations on a single day, but six is a record that surely will never be surpassed. Washington also sent more Supreme Court nominations to the Senate and had more nominees confirmed than any other president in history.
Henry Abraham has identified seven criteria for potential Supreme Court nominees that Washington adhered to “predictably and religiously: (1) support and advocacy of the Constitution; (2) distinguished service in the Revolution; (3) active participation in the political life of state or nation; (4) prior judicial experience on lower tribunals; (5) either a ‘favorable reputation with his fellows’ or personal ties with Washington himself; (6) geographic suitability; (7) love of our country.”
I didn’t notice until… a few minutes ago, really, that on this same sheet of paper, Washington nominated the very first class of district judges, attorneys, and marshals. A cluster of obscure figures, surely, who didn’t land the top gig? I thought the primary excitement would end along with my internship, but as it turns out, none other than John Marshall was appointed to be U.S. Attorney for Virginia. How historically delicious that his name appears merely inches below those of Jay, Rutledge, Wilson, Cushing, Harrison, and Blair! (For this reason, I also love how “marshals” is spelled “marshalls” on the document, even though it’s spelled “marshals” in the Judiciary Act of 1789.) The list of district-judge and DA nominees is replete with somebodies: Francis Hopkinson (Declaration signer), Gunning Bedford (Constitution signer), Thomas Johnson (soon to be Justice Johnson), Edmund Pendleton (a giant in his native Virginia), and Thomas Pinckney (known today for his diplomatic service in England), among others.