Summary: Kathryn Turner’s “The Midnight Judges”

Kathryn Turner’s The Midnight Judges describes a judicial crisis at the turn of the 19th century, described by Jamelle Bouie as a “partisan problem” which demanded a partisan solution. 

In this post, I summarize Turner’s article and the key points of her research into the nature of the problem and the political figures involved. 

Overview

The Judiciary Act of 1801 reorganized the contemporary circuit court system, and also gave the Adams Administration the power to create new judicial offices, filled by his & his colleagues’ own appointments. Many of these circuit appointments were tenured for life.

Ultimately repealed and its offices abolished under the administration of Thomas Jefferson, who “lament[ed]” over the fact that “Federalists ha[d] retired into the judiciary as a stronghold…and from that battery all the works of republicanism are to be beaten down and erased,” Adams’ Judiciary Act provided opportunities and stirred agitation for everyone involved. Frantic selection of the circuit nominees proved burdensome even to John Adams himself, who wrote his complaints to his wife Abigail Adams.

Chief Justice and Secretary of State John Marshall may or may not have wielded influence over the selection of the new circuit appointments. Though no written correspondence from the roughly two-week period exists between Adams and Marshall–both were physically present in Washington–his high office and close working relationship with the President conceivably presented Chief Justice Marshall with ample opportunity to share the chief executive’s confidence.

Signed into law on February 13, 1801–barely two weeks before the end of Adams’ presidency on March 4–the appointments of the act are known as “the midnight judges,” due in part to an urban legend regarding the Judiciary Act. Turner writes that “according to ancient story, the Secretary of State continued to sign commissions until…midnight, March 3, 1801.” Biographers and historians without a flair for the dramatic dismiss the legend as “household gossip” and “an absurd tale.”

Revamping the old circuit court system–which organized US judicial districts into Eastern, Middle, and Southern circuits–the new judiciary would create six circuits, each presided over by a chief judge and two associate judges. Only the Sixth Circuit (East & West Tennessee, Kentucky, and Ohio) would operate differently: this region’s circuit functions would be performed by one appointed circuit judge, and the existing district judges of Kentucky and Tennessee.

Under the previous circuit system, established by the Judiciary Act of 1789, each circuit was presided over by two Supreme Court justices and one district judge from the sitting district in which a case was to be heard. Primary duties would now shift to the newly appointed circuit judgeships, freeing up the Supreme Court justices for federal duties.

First Circuit

Massachusetts, New Hampshire, Rhode Island, and the District of Maine comprised the First Circuit under the new Judiciary Act.

Harrison Gray Otis, a Federalist member of the House of Representatives from Massachusetts, was the man perhaps most instrumental in determining the “future judicial composition” from his state. Otis initially sought the nomination of Theophilus Parsons for a circuit position. 

Parsons, a Federalist, was actively practicing law in Newburyport and Boston when he was contacted by Otis. He refused consideration for a circuit position, on the grounds that he was in “poor health,” and because of the “low salary offered by the new bill…” Given that the judicial system under discussion had its genesis under Adams’ Federalist administration, Parsons also expressed doubts over how long such a system could actually last. In a letter written to Otis, Parsons wondered: “…how long [is] the present system…to last, if it be established this session?” Within this letter, he also redirected Otis toward John Lowell, whom he stated may be offended and resign if he were not considered for the position.

Lowell, the active district judge for Massachusetts, was actually planning to resign because of the new circuit judgeship, since it would diminish the “duties and prestige” of district judges, in his view. He wrote to Otis that he would accept a circuit nomination, and that it was important to “accomplish[] the appointments under the Federalist administration.” Otis agreed evidently, and nominated him immediately. Lowell resigned his previous position just as quickly.

John Davis, the United States district attorney for Massachusetts, was sought as a replacement for the district judgeship newly vacated by John Lowell. After learning of the “diminished duties and lower salary of the district judges,” Davis refused consideration. Otis had other designs, however. On the day Davis’s nomination was sent to the Senate, Otis wrote a letter to his wife explaining that President Adams had nominated him as Massachusetts district attorney: Otis himself was set to replace Davis. Despite his outrage, Davis had been made an offer he could not refuse, and so moved on to a distinguished forty-year tenure as Massachusetts district judge.

The New Hampshire political elite showed keen interest in picking a suitable candidate from their ranks. John Pickering was the standing district judge of the state, and, albeit a logical choice, was deemed unable to “perform[] his judiciary duties,” due his frequent and known abuse of alcohol. Some even claimed Pickering was insane.

Jeremiah Smith, the New Hampshire district attorney, was eager to advocate for his own appointment, and quick to discourage any consideration of John Pickering. In a letter to Secretary of Treasury Samuel Dexter, Smith warns that under Pickering, “execution of…the revenue acts, was being seriously jeopardized in New Hampshire.” Self-aggrandizing letters were also sent to Chief Justice John Marshall and other Federalist senators from the First Circuit region.

New Hampshire senator Samuel Livermore had voiced support for his son, Edward St. Loe Livermore, to receive a circuit appointment. Edward held office as the US district attorney from 1794-1797, but resigned after dissatisfaction with its salary. The elder Livermore also recommended Jeremiah Smith, who ended up receiving the circuit appointment. Samuel’s son Edward then reprised his role as US district attorney after the position was vacated by Smith.

Federalist senators and congressmen from Rhode Island wrote to President Adams requesting that Benjamin Bourne, the state’s district judge, receive nomination for circuit judgeship. Bourne was considered a “man of extensive information, strong attachment to the Government and amiable manners.” Ray Greene, Rhode Island senator, was endorsed by the same group as a replacement for the district judgeship that Bourne would vacate. This, evidently, was all Adams needed to hear, and Bourne and Greene were nominated immediately: their official nominations were sent to the Senate on February 18, just five days after the Judiciary Act had become law.

Second Circuit

The Second Circuit was composed of Vermont, Connecticut, and New York.

Vermont congressmen had one “sole choice” for their pick: federal district judge Samuel Hitchcock. Recommendations from twelve congressmen sealed Hitchcock’s appointment as chief judge of the Second Circuit. His vacant judgeship was filled by the former Vermont Supreme Court justice Elijah Paine.

Minor controversy arose in the circuit appointments from Connecticut. The former congressman and then-current state superior court judge, Jonathon Sturges, was formally recommended by various congressmen from the states of the Second Circuit as a well-qualified and respected member of the bar. President Adams seems to have had a different idea altogether, though.

Oliver Wolcott was the former Secretary of Treasury, who retired in December 1800. Following a scandal which led to the firing of James McHenry and Timothy Pickering from Adams’ cabinet, Wolcott resigned amidst attacks from Jeffersonians. Improprieties in the treasury and “defalcations in the public accounts” spurred a committee investigation in the House of Representatives, at Wolcott’s own insistence. Despite the committee’s finding that “all was in good order,” the controversy ended in Wolcott’s voluntary resignation.

Adams seemed to have remained in correspondence with Wolcott, and substituted Sturges’ nomination with Wolcott’s several days before the Senate was to make its official decision. The president had Secretary of Treasury Dexter meet with Vermont senator James Hillhouse to persuade him to smooth things over back in Vermont when its congressmen learned of the substitution. Wolcott, who was admitted to the bar in 1781, but had never practiced law, held an utter lack of experience on the bench, and the substituting of his name over an experienced judge was likely to create confusion.

Hillhouse, in a letter to Wolcott, stated that Vermont’s support for Sturges came from the fear that support for Wolcott would “produce an irritation that would be attended with unpleasant consequences.” Maybe Hillhouse, out of respect for the man of once high public station, was merely softening the blow, or maybe this suggests that Wolcott was his first choice.

President Adams’ nomination of Wolcott, and his baffling suggestion that he should be chief judge despite his complete lack of experience, is open for interpretation. Turner writes that “personal or political motivations were obviously primary.” Adams, presumably looking to mend party rifts, may have been feeling “personal bitterness” at being forced from his office amidst public disapproval, and projected these feelings onto the nomination process. Feeling betrayed by a “thankless nation,” Adams was overcome by “reflective compassion” and moved to offer a “token of gratitude from the Executive” to Oliver Wolcott.

There was no shortage of “character references” for Adams to sift through from New York correspondence. A number of esteemed figures personally wrote to Adams to voice their support for the appointment of Samuel Bayard, who seemed to greatly benefit from his network of family members and colleagues. Samuel, judge of the court of common pleas in Westchester County, was related by marriage to Elias Boudinot, director of the mint and “long-time friend of John Adams.” His cousin, James A. Bayard, also happened to be a Federalist member of the House of Representatives. Colonel John Bayard–Samuel’s father–and Rhode Island Senator Theodore Foster, both personally wrote letters of recommendation on Samuel’s behalf, along with the President of Princeton Samuel Smith, who “assured Adams of Bayard’s attachment to the federal government.”

John Rodgers, a “noted clergyman,” positively gushed over Samuel Bayard. Rodgers vouched for Bayard’s very life as “one such as the gospel of our Lord requires.” The clergyman went on extol the virtues of Bayard, calling him “a person well suited to judicial offices to be awarded to ‘men of legal abilities, Friends to Government & good order & of unstained moral Characters & enemies to the fatal philosophy of the Day.’” John Adams wrote in response that “the character of ‘an enemy to the fatal philosophy of the day’ has great weight with me, although it appears to have none with our nation.”

Despite the assuredness with which Adams seemed to respond to the potential nomination of Samuel Bayard, it was Egbert Benson who received the nomination and was appointed as chief judge of the Second Circuit. Benson was a Revolutionary patriot and former congressman, who had served as New York Supreme Court justice since 1794. When Speaker of the House Theodore Sedgwick wrote to him about a potential appointment, Benson replied it would be “prudent” to accept. For all of his glowing references, Bayard was passed over, and ended up with appointment as Minister to France.

Third Circuit

The Third Circuit was composed of Pennsylvania, Delaware, and New Jersey.

Federalists experienced a palpable sense of urgency to fill the vacant Pennsylvania offices with those of their own ranks, lest they be occupied by incoming Jeffersonian ilk. Senator William Bingham wrote to district judge Richard Peters that “the federal party wish the appointments to be made under the present administration, expecting the President will give due weight to the Recommendations of the Members of the Senate…of the Importance of filling these Seats with federal characters must be obvious.”

Pennsylvania district attorney Jared Ingersoll had planned to resign after John Adams left the presidential office. In his letter of resignation to Adams, Ingersoll writes: “If the result of the late presidential election had been comfortable to my wishes & my ideas of what was best for the publick, I would have continued to execute the duties of that office…I do not feel the same obligations nor the same inclinations towards your successor…” Lacking any evidence that Adams ever discussed the possibility of a circuit court appointment with Ingersoll, coupled with the lack of evidence that Ingersoll ever expressed any interest in such an appointment, Adams sending his recommendation of the former to the Senate without consulting him, at all, seems a tactless move. Ingersoll immediately wrote to have his name withdrawn from consideration.

William Tilghman, Ingersoll’s own recommendation as his replacement, was perhaps the next best choice. William’s cousin, Edward, was a member of the Philadelphia bar and called the “consummate Pennsylvania authority on all points connected with estates, tenures, uses and remainders.” In the wake of Ingersoll’s refusal, Adams sent a Tilghman name to the Senate: Edward. This Tilghman was apparently never consulted either, and he refused consideration. In a last minute substitution, Edward’s name was struck and replaced by William, who did accept his eventual nomination as chief judge. It’s unclear if this debacle was a clerical error on Adams’ part.

In New Jersey, the former congressman and Federalist leader Richard Stockton sent Adams a letter of recommendation on behalf of William Griffith. Stockton had this to say about the Federalist lawyer from Burlington:

“It will give pleasure to the most substantial friends of your administration if he should be appointed. To those who under one name or another have perpetually opposed the Government, and calumniated its administration from its adoption to the present time it will be the cause of sorrow….Your public conduct Sir has fully evinced that you never dreaded the frowns, nor courted the smiles of such men.”

Adams responded by telling Stockton to consider himself for the circuit; he was flattered, but declined out of worry that this Judiciary Act would be repealed and all appointments invalidated. Learning of his hesitation, Adams relented and sent the nomination of William Griffith to the Senate.

Selection of a candidate from Delaware was relatively straightforward, since only one name was put forth: Richard Basset. The Governor of Delaware was suggested for appointment by his son-in-law James A. Bayard, who had concurrently rallied for his cousin Samuel in New York. Enthusiastic and “delighted” with his new circuit judgeship, Bassett immediately resigned as governor and commenced to cozy up to his new circuit colleagues.

Fourth Circuit

The Fourth Circuit consisted only of Maryland and Virginia. Turner writes that there is less information available regarding appointments for this and the remaining two circuits.

President Adams’ first choice for chief judge of the Fourth was Charles Lee, US attorney general since 1795. Lee denied consideration, and so the nominations were “reshuffled” to prohibit the possibility of any vacant judgeships.

In Maryland, support for the defeated Federalist Philip Barton Key was strong, but “occasioned active opposition.” Key’s tenure as a Loyalist captain during the Revolutionary War drew nine Republican votes against his confirmation. The Federalist assembly pulled through, however, and after the position was refused by Charles Lee, Key was appointed chief judge.

Rounding out the remaining two associate positions in the Fourth Circuit were George Keith Taylor and Charles Magill. Taylor was fortunate enough to both have the blessings of Virginia Federalists, and to be the brother-in-law of Chief Justice James Marshall. Initially passed over in the flurry of recommendations, Magill received attention and an appointment after the Lee reshuffling.

Fifth Circuit

The Fifth Circuit included the states of North Carolina, South Carolina, and Georgia.

Samuel Johnston and John Sitgreaves were the names circulating as possible appointments from North Carolina. Johnston was a state Superior Court judge, who had previously sat on the state legislature, as a Senator, and as the governor of North Carolina; his wealth of experience drew bipartisan support for his nomination. Sitgreaves, the district judge of the state, seemed to have been personally favored by Adams in his correspondence with prominent Federalists. An associate position was eventually won by Sitgreaves over the former governor. Joseph Clay, the district judge of Georgia, was appointed as the other associate judge.

Thomas Bee was selected by Adams as chief judge of the Fifth Circuit, and had notoriously extradited the sailor Jonathan Robins, who was actually a British subject and alleged murderer & mutineer named Thomas Nash. This “truckling to the British” by Bee and Adams, coupled with Nash-Robins’ subsequent execution by hanging, drew pointed attacks from Republicans who opposed the Adams administration’s favorable foreign policy toward Great Britain.

Sixth Circuit

East & West Tennessee, Kentucky, and Ohio comprised the Sixth Circuit, which was uniquely organized in that the “circuit function was to be performed by one circuit judge and the judges of the district courts of Kentucky and Tennessee…”

Republicans put forth numerous recommendations of highly experienced and well respected persons for the singular circuit position, though it seems they went unheeded. Written endorsement for William McClung from his brother-in-law, Senator Humphrey Marshall, sealed his appointment. Humphrey passed his letter on to his cousin, chief justice John Marshall, who also happened to be McClung’s brother-in-law. McClung was eventually nominated, and the optics of impropriety and apparent disregard for Republican input drew their criticism: in a report to Lexington’s Kentucky Gazette, Senator John Brown said, “Mr. Adams was deaf to every argument in opposition to the recommendation made by Messrs. J. & H. Marshall.”

Final Actions of Adams Administration

Along with the newly bolstered ranks of the federal courts, Congress’s final acts during the Adams administration included the establishment of the District of Columbia in Washington on February 27, 1801–four days before the end of Adams’ presidency.

Washington, D.C. was given a district court system with three judges, which would be equivalent to the federal circuits in their authority and function. William Cranch had previously been nominated as Washington’s city commissioner by his esteemed uncle, President John Adams. Already plainly inviting charges of nepotism, John Adams upped his ante and nominated Cranch as Washington, D.C.’s first associate circuit judge. The second circuit position was filled by James Marshall, who received an endorsement from Secretary of the Navy Benjamin Stoddert. James was also the brother of chief justice John Marshall.

The retired Thomas Johnson was nominated by Adams as chief judge of the D.C. circuit court. Johnson had resigned from the Supreme Court in 1793, and refused appointment as Secretary of State in 1795 “because of ill health,” and apparently was not persuaded to return for one last job: he refused the nomination, and the office remained vacant. Thomas Jefferson appointed the Maryland lawyer and Revolutionary War veteran William Kilty to the D.C. chief judgeship when he took executive office.

The Judiciary Act of 1801 allowed for a slew of other appointments, such as marshals, clerks, attorneys, registers of wills, and justices of peace. Lucrative opportunities abound for ladder-climbing Federalist wishfuls: some broke; some unemployed; many just barely qualified. John Adams and the Sixth Congress labored tirelessly to finalize these appointments, Turner writes: “On March 2 and March 3 until their final adjournment, the senators approved the remaining nominations of marshals, registers of wills, and forty-two justices of the peace.”

Contemporary Reactions

The Republican apprehension was characterized by “dismay and disgust.” Charges of nepotism, unconstitutionality, spiteful partisanship, and designs of obstruction were leveled at Adams and the Federalists. James Madison writes to James Monroe: “Instead of smoothing the path for his successor, he [Adams] plays into the hands of those who are endeavoring to strew it with as many difficulties as possible; and with this view does not manifest a very squeamish regard to the Constn. (sic)” The milieu of Republican newspapers echoed the sentiment. Many expected “repeal of the Judiciary Act and an abolition of the offices created by it…”

Federalist newspapers scoffed at the accusations of impropriety, claiming the newly appointed officials were not simply partisan. Gazette of the United States and Philadelphia Daily Advertiser on Feb. 6, 1801 writes: “They [Republicans] well know that the judges are equally independent upon the officers of the government and the people, and can be influenced in their actions, by no other motives than the love of justice and desire for the strict execution of law.” 

Federalist statesman and founding father Gouverneur Morris, in anticipation of Jeffersonian resistance of Adams’ “crude exercise” and “gratuitous insult,” writes to his friend Robert Livingston: “[Federalists will face] a heavy gale of adverse wind; can they be blamed for casting many anchors to hold their ship through the storm?”

Kathryn Turner’s Comments

Turner’s overall evaluation of the appointments is that they were mostly straightforward and suitable: “As a whole, the group of midnight judges reflected the relatively moderate political positions of the men who selected them.”  Despite Republican polemics, their chief executive may not have disagreed with Turner. After overturning the Judiciary Act and abolishing its offices, Thomas Jefferson named William Cranch as chief justice of the D.C. circuit several years later.

Creeping nepotism and noted incompetence still cannot be ignored: “Richard Basset of Delaware, James Marshall of Virginia, William McClung of Kentucky, George Keith Taylor of Virginia, and William Cranch all owed their appointments to direct action on the part of their respective relatives.” And on Oliver Wolcott, “the personal choice of President Adams,” Turner writes that “[he] had neither legal nor judicial experience; he could scarcely have been expected to be a luminous ornament to the federal bench.”

Aside from and in addition to the actual character of any specific appointment, the eleventh-hour dash to staff the ranks with loyal Adams-era Federalists was anything but conducive to Jefferson’s administration: “…the last action of one administration was to provide the first major issue of the next…”

Further Reading

The Midnight Judges, Kathryn Turner

The Jeffersonian Assault on the Federalist Judiciary, 1802-1805; Political Forces and Press Reaction, Jerry W. Knudson