Madison Rejected Judicial Litmus Test, Justice Roberts Says

By Kevin Mooney | July 7, 2008 | 8:32pm EDT

( - A difficult Supreme Court nomination process, which started in 1810, was further complicated when a second court seat became vacant the following year under President James Madison, Chief Justice John Roberts said in a speech to the conservative Federalist Society on Friday in Washington, D.C.

That difficulty and its resolution have relevance in today's often partisan judicial nominations, according to legal experts.

Madison, in the end, found it necessary to abandon the partisan, politically charged advice he had been receiving from his ideological mentor - Thomas Jefferson - in exchange for a more meritorious search for qualified nominees, Roberts said.

This episode in U.S. history has been largely overlooked by Madison's biographers, the chief justice explained, because discussions of Madison's presidency tend to focus on issues of war on peace.

Nevertheless, the political challenges connected with Madison's Supreme Court selections have contemporary relevance, said Roberts.

In Madison's time, it was customary to consider geography when a vacancy emerged, Roberts said. For this reason, it was understood that Madison would look to New England to find a successor for Associate Justice William Cushing of Massachusetts, who passed away 18 months into Madison's presidency.

Likewise, when Associate Justice Samuel Chase of Maryland passed away the following year, Madison looked to the home state of Chase for a replacement.

Jefferson's antipathy toward the Marshall Court figured prominently into the equation, Roberts said. Tensions between Jefferson and Marshall were further exacerbated by the Fletcher v. Peck decision, which confirmed the court's authority to strike down state statutes.

Therefore, Jefferson was anxious to seat a new justice who would operate as a counterbalance to Marshall, but Madison himself had more restrained views, Roberts said.

As a matter of principle, Madison "respected the need for a strong, independent judiciary," the chief justice noted. "As a Republican, he differed with Marshall's nationalistic vision, but the differences were in historical perspective and were principled and measured."

Jefferson urged Madison to select a New England Republican who had been supportive of the trade restrictions Jefferson favored. But the trade restrictions were unpopular throughout New England, even among Republicans who otherwise favored Jefferson's polices, said Roberts.

One Republican who agreed with Jefferson's trade policy was Alexander Wolcott, a federal revenue collector in Connecticut. "But he was widely unpopular as revenue collectors tend to be," Roberts observed. On Feb. 13, 1811, Wolcott was rejected by a margin of 24 to nine.

At this point, Madison began to "retreat from Jefferson's partisan advice" and to "turn to individuals outside the ranks of solid Jeffersonian Republican" credentials. He first settled on John Quincy Adams, who was confirmed but nevertheless declined in deference to his own presidential ambitions, Roberts explained.

When a second court slot opened after the death of Justice Chase, Madison responded by jointly appointing Gabriel Duvall to succeed Chase and Joseph Story to succeed Cushing.
Both nominees were confirmed unanimously on the next business day in the U.S. Senate.

"That's right, the next business day," Roberts added.

Duvall was not known for his verbosity, the chief justice told audience members. He contributed just two words to the court's published constitutional jurisprudence. Specifically, Duvall said "I dissent" in the case of Dartmouth College v Woodward.

"I find this sort of brevity admirable," Roberts said.

Although Story had a previous political career and had been identified as a Republican, he fervently believed the application of the law should be separated from political considerations, said Roberts.

The view Story had of the judiciary's proper role was consistent with the principles Madison himself outlined in No. 39 of the "Federalist Papers," Roberts told audience members.

"The process that led to Story's appointment perhaps reflects a truth about Madison," the chief justice said. "History records that Madison was often indecisive at the outset of a crisis, a quality that did not serve him well as president ... but Madison always worked steadfastly toward a solution.

"His initial reliance on Jefferson's advice deterred but did not prevent Madison from eventually selecting Story, and it ultimately showed good judgment in rejecting Jefferson's litmus test with respect to a nominee's attitude toward a prominent political issue of the day," said Roberts.

Jay Sekulow, chief counsel for the American Center for Law and Justice (ACLJ), told Cybercast News Service that the chief justice had seized on an appropriate theme for the Federalist Society meeting.

"He was talking about the way the confirmation process was done then and the way it is done now," he said. "I thought it was an excellent speech, one that hit on a key theme of concern to this group."

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