President Hayes Appoints a Justice

Loren P. Beth

Associate Justice David Davis, "Lincoln's Manager," was elected to the Senate by the Illinois legislature January 25, 1877, and resigned his seat on the Court effective March 4. Thus, Rutherford B. Hayes knew--even before his own election was certain--that there would be a Supreme Court vacancy to be filled. Speculation about the appointment naturally began immediately, but the possibilities in January and February were wide open, since there was still a good chance that the new President would be a Democrat. It remains mysterious, however, that Hayes took so long to make his appointment, when one might have expected that the seat would be filled almost as soon as the Cabinet appointments were made.

Two considerations rendered his decision less urgent than it might otherwise have been. One was the fact that Congress adjourned shortly after getting itself organized and approving the Cabinet appointments in March. Thus any appointment to the Court made before it reconvened would have to be a recess appointment, and under the circumstances of Hayes' relations with the Republican Stalwarts, such an appointment could well cause him nothing but embarrassment: there was a real possibility that a Justice who had already taken his seat might eventually be disapproved by a fractious Senate. While Hayes intended to call a special session to deal with the Army appropriation, which Congress had failed to enact, it was found possible (and politically desirable) to delay this until October 15.[1] As a consequence, the Supreme Court nomination could not go before the Senate until that date. Then too, the Court was itself nearing the end of its October 1876 session; Justice Davis' resignation did not take effect until March 4, 1877. Any new Justice would thus barely have assumed his seat--even assuming prompt Senate action--before the Court adjourned for the summer.

Between these two circumstances, the President found himself with the leisure necessary to take his time about what was likely to be a contentious nomination. There were good reasons, in fact, not to announce the name of Davis' successor until Congress could act on it, rather than letting debate drag on through the summer and fall. There is, however, no reason to suppose that the President actually made up his mind about the appointment until shortly before the special session convened October 15.

Harlan was in the mind of the President, along with several other possibilities, by early March. As a matter of fact, Hayes probably thought of Harlan as soon as he determined that he would not appoint the Kentuckian Attorney General. Justice Samuel F. Miller, who kept up with this affair, partly because of his interest in pushing his own brother-in-law, William Pitt Ballinger of Texas, wrote Ballinger in mid-March assessing the qualifications the President had in mind for the post:[2]

Caldwell and Wood [sic] have been pressed on his consideration by more men of influence than any other nominees. Judge Bruce of Alabama who is [a] graduate of my law office had an interview three days ago with the President as I suppose to favor Wood; but of that Jam not sure. He fold me however, that the President was hesitating between Harlan of Kentucky or possibly Bristow their interest being one, and a real Southern man, and in this latter sense he did not consider Wood or Caldwell to meet the requirement. Now the difficulty of selecting a real Southern man is that all the men who before the rebellion had made high reputation as lawyers are either dead or too old for the place.

Miller could have added that most prominent Southern lawyers were still tainted by their association with the Confederacy.

Even at this early date, Miller had identified the most prominent contenders. Henry Clay Caldwell of Arkansas and William B. Woods of Alabama were both federal judges; they were not "real" Southerners, being carpetbaggers--Woods from Ohio and a Union army officer, Caldwell from Iowa and also a Union veteran.[3] Woods was apparently very well liked in his circuit (or else he orchestrated a campaign), for Hayes' good friend James A. Garfield wrote that he felt that he had never seen as many sincere recommendations as those which supported Woods.[4] Hayes was sufficiently impressed to appoint him to the next Supreme Court vacancy, in 1880.

Woods and Caldwell had, nevertheless, at least two advantages over Harlan or Bristow: they came from judicial circuits which were then unrepresented on the Court. On the other hand, Kentucky was in the same circuit as Ohio, which already had two Justices--Chief Justice Waite and Justice Noah W. Swayne. The Chief Justice told Miller that it would be a mistake to appoint anyone from Kentucky. In Miller's words, "it would be very unpolitic to fill the place from a circuit which now has two members of the court, and...this would give Davis's circuit just ground of complaint."[5] Miller had by this time talked personally to the President (Waite apparently never did), and presumably passed this word on; but the President was by this time fully aware of the politics of the situation. He was being importuned by Illinois lawyers and political leaders to nominate Judge Thomas Drummond of that state to fill what they seemed to regard as the "Illinois seat."[6] These men, David Davis himself included, were not anti-Harlan as much as they were opposed to another appointment from the Sixth Circuit.

On the same occasion, Hayes asked Justice Miller for his own opinion. Miller, while pressing the candidacy of Ballinger, nevertheless told the President that both Harlan and Bristow "were fully up to the standard required both by native ability and professional attainments," and that of the two "Harlan was probably a man of the most vigorous intellect, while Bristow was believed to be if any different of the soundest judgment."[7] The two agreed, however, that Bristow's presidential hopes stood in the way of his appointment.

Harlan had other liabilities, which may have given Hayes pause. He had come late to Republicanism and had originally opposed the Reconstruction Amendments: Republican Stalwarts thus distrusted him. They were not encouraged by his service on the Louisiana Commission even though that body's work merely gave the President a pretext for doing what he wished to do anyway. There were, moreover, rumors of corruption and even possible bribery related to the Louisiana episode which were to haunt him during the struggle in the Senate over his confirmation. Finally, the Stalwarts would never forgive Ben Bristow or the other Republican reformers who had prevented their man Blame from being nominated in 1876. Harlan was rightly seen as a member of the reform wing of the party, and any job given him by the Administration would be regarded as a reward to Bristow.[8]

But if he had weaknesses, Harlan also had major strengths. He was the man known to be closest to Bristow, so that if Bristow's appointment was seen to be impolitic, Bristowites like Henry V. Boynton might be expected to regard Harlan as the best available alternative. And in general, Hayes needed to maintain his own reputation as a reformer who was willing and able to battle the Stalwarts and beat them. The choice of Harlan would do this. He was, in addition, enough of a Southerner to propitiate Southern Republicans and appease Southern Democrats, thus carrying out an earlier version of Nixon's "Southern Strategy."

But most of all, Hayes owed a good deal to John Harlan, much more than he owed to Bristow himself. Bristow had been a competitor and was always seen by Hayes people as a potential thorn in the President's side whenever Hayes might do, or not do, something on which the reformers might have strong opinions. Harlan, on the other hand, had swung the Kentucky delegation to Hayes at a critical moment in the Convention. In addition he had incurred some substantial political risk by agreeing to serve on the Louisiana Commission. Finally, there is no doubt that Hayes knew of Harlan's hopes to be Attorney General, and felt that there was a danger that Kentuckians might turn against him if something else was not offered.

Even so, there is some evidence that Hayes would have preferred to appoint Woods, who had none of Harlan's political liabilities. His offer of the post of Ambassador to the Court of St. James's is probably best viewed as an attempt to satisfy Harlan without putting him on the Supreme Court. Harlan's refusal of that offer quite possibly put him in a position in which the Court appointment became almost inevitable.

By August, although Justice Miller continued to press for Ballinger, it had pretty clearly become a choice between Woods and Harlan. At this juncture, Harlan's friend from Louisiana Commission days, Wayne MacVeagh, wrote to the President,[9]

I cannot resist the conclusion that you are wrong in the tendency you first expressed to fill [the vacancy] from one of the extreme Southern states. I certainly need not protest that lam absolutely free from any prejudices against that section of our common country,... but... I cannot divest myself of the conviction that if a lawyer of unquestioned ability, a statesman of comprehensive views and a thoroughly sound Republican can be found living in the more Northern States of the South, it is safer to offer him the position.

I believe General Harlan of Kentucky meets all these requirements and that you could not possibly do a wiser and better thing for the country as well as for your Administration than offer him the existing vacancy.

...I therefore earnestly hope that you will see your way clear to offer the present vacancy to General Harlan and to await another opportunity before going further South.

Whether or not MacVeagh's words influenced the President, he did exactly what they suggested.

What was John Harlan doing while all this was going on? As suggested earlier, he was concentrating on his law practice, with time out to try to obtain or retain federal jobs for his friends or political supporters. His oldest son Richard was to start at Princeton in the fall and money was as usual a problem.

In addition, there is some evidence that Harlan was actively involved in his own candidacy for the Court vacancy. By July it was practically certain that President Hayes was not going to offer the position to Bristow; this left Harlan free to pursue the position as actively as he wished. He did not want to do anything overt, but it is perhaps true that he worked behind the scenes to stimulate support. This was nothing more than many others had done and were doing. Caldwell, in particular, had "campaigned" for the Supreme Court once before and was doing so again--although this time without the support of Justice Miller, who was committed to his brother-in-law.

How active Harlan really was cannot be judged with any certainty. Boynton, accused him of politicking for the position in Philadelphia with MacVeagh and Cameron as early as July. In September and October dozens of letters arrived at the White House urging his nomination. Most, but not all, of these came from Kentucky lawyers or other prominent Kentuckians. These could very well have been written without any urging from Harlan himself: some may have been spontaneous, although it is more likely that a few of his close associates orchestrated a letter-writing campaign. Another evidence of his personal interest appears in a letter from Charles W. Fairbanks to someone close to the White House.[10]

I have just had an interview with Judges Gresham and Howland[11]--the former you know and the latter is Master in Chancery of the U.S. Court [in Indianapolis].

During the interview the subject of Judge Drummond's case came up. I learned that John M Harlan was, and is, moving earnestly for appointment to the Supreme Bench. He has been here a number of times of late, and lam advised a petition has been started in his favor--though it is not signed to any considerable extent. The petition is not openly circulated as Judge D[rummond]s was--and such as sign it (if any have) do it with the understanding that H. should be appointed if Judge D. is not. This is as Judge G. thinks.

I understand Judge David Davis is very pronounced against the President's going South for an appointee, and from what Judge G. intimated Judge D[avis] will be very much disappointed if Judge Drummond is not appointed And he expressed himself to Gresham recently as being most decidedly opposed to Harlan. I was surprised to learn of his strong disinclination towards the selection of a Southern man.

I write this upon request of the Judges whom I have mentioned. They in common with a great many regard it as advisable to appoint a Judge to the Supreme Bench from the Circuit and think no one is entitled to the place above Judge D.

David Davis was not, in fact, as much opposed to Harlan as he was in favor of Drummond. He seems to have had friendly though not intimate relations with Harlan and was close to Bristow as well. Certainly he supported the nomination when it came before the Senate.

Whatever Harlan himself was doing, other candidates were doing also. Then too, many who were not in the race themselves had candidates to promote. And thus, quite a few non-Kentuckians were called upon to comment on Harlan's ability and political availability. The President's political intimate, William Henry Smith (by 1877 director of the Western Associated Press in Chicago), was asked by the President for his frank opinions.[12]

Confidentially and on the whole is not Harlan the man? Of the right age--able--of whole character--industrious--fine manner, temper and appearance.

Early in October, Smith's reply was not wholly favorable.[13]

Is Harlan the man? I think so. His age, vigor--mental and physical--his agreeable manner and personal magnetism are strongly for him. I think him a very much better man in every way than Bristow, and if a Southern man is to be taken, he is the man. The appointment will offend a good many people of both parties of this section, who believe the selection should be made from this state [Illinois]. They will complain at first but in time, if the Administration continues in well doing they will forget about it or overlook it. This remark applies to the people not to a few politicians who sympathize with Conkling and swear you have destroyed the party in breaking the machine. I hope, however, the appointment of a judge will not be made at a date earlier than November. The more time you get, the surer of victory.

Although still favorable to Harlan, Smith was less hopeful a few days later about the political reaction that might be expected in the Middle West.[14]

I am troubled about that Supreme Court business. The offense to the people of this District, if an appointment is made out of it, is going to strike deeper than I at first thought. This District is second to none in importance. It will be more important in the future. To appoint Harlan will be to give the Ohio Dist. three members, & deprive this strongly Republican one of any. Then the appointment of Harlan would be less acceptable here than a man from the Gulf States. That is now clear. In view of these facts & the near approach of the Wisconsin Election I hope you will postpone the appointment until the regular Session. Hence I telegraphed through Webb today. Give the lawyers of this dist. a fair & full hearing.

MacVeagh, too, was at work. He wrote to C.B. Lawrence of Chicago (and presumably to others) soliciting support for Harlan. Lawrence thereupon wrote the President that if a Southern man were to be appointed; "no lawyer could be named from the South who would be more acceptable to the bar of this Circuit than Gen. Harlan and there can be no question of his eminent fitness for the place.[15]

Miller, in a letter to Ballinger just a week before Hayes' decision was made public, seemed resigned to Harlan's appointment, although writing to another aspirant he could not openly give up hope.[16]

I do not see how the President can appoint Harlan, though I think he wishes to do so. If not Harlan then there is much hope for you. His action thus far in making appointments shows the strong perhaps too strong influence of his personal wishes. Next to Harlan I think his wishes are in your favor.

Whether one calls it independence or stubbornness, Hayes disregarded the advice of both Smith and Miller (who of course had opposing alternatives in mind) and on October 16, 1877, he had finally made up his mind, submitting the name of John Marshall Harlan.

* * * * *

In the American system, nomination by the President is far from tantamount to final appointment. Not only does the Senate have the power to "advise and consent," but it is a power of which that body is extremely jealous, and fairly often uses to delay if not to block appointment. This is especially true when the President is weak, when his party is a minority in the Senate, or when there is strong anti-President feeling in a numerous faction of his own party. Although Hayes appears stronger to contemporary historians than he often did in his own time, he will never be ranked among our really strong Presidents. But even a strong man would have had difficulty with the Republican Stalwarts. To them the only good President was one who was under their thumb. It is true that Harlan's association with Bristow would have led, in any case, to some opposition in the Senate. But it is certain that much of the opposition--and its strength--was due to Stalwart anger at the President's temerity in daring to nominate anyone not approved by them.

The result of this situation was that Harlan's confirmation was held up for six weeks. In hindsight, it appears that the Stalwarts did not have real hopes of defeating him, but of course Harlan did not know this, and these were anxious weeks for the Kentuckian and his growing family.

The reasons for opposition were varied, and much depended upon who the objector was. Some of the opposition--but not the most serious or intractable--came from the Seventh Circuit; which was losing a seat. This was certainly true of Senator David Davis of Illinois, who felt that "his" seat belonged to the Circuit. But he was, as Justice Miller reported, "personally friendly to Harlan," and ended up voting for his confirmation. Senator Timothy 0. Howe, Republican of Wisconsin, had dual reasons for opposing: not only was Harlan from a different Circuit, but Howe had personal ambitions for the seat.[17] Melville W. Fuller, a prominent Chicago attorney and Republican leader, opposed the appointment almost solely on Circuit grounds. He found it "a disagreeable surprise," and went on to say that it "accomplished nothing except to reward a Louisiana Commissioner, a personal and secondary consideration. I hope the nomination will fail of confirmation."[18] It is fortunate that Harlan did not know of this letter, for in the 1880s he was to send his son James to study in Fuller's office; they had become friends while Harlan was "on circuit." Fuller went on to become Chief Justice in 1888, and the men and their families became intimate--an association which lasted many years.

But the most serious attacks came from the Eastern Republican Stalwarts, joined by such Midwesterners as Senator "Zach" Chandler of Michigan. To a large extent these men, as noted above, were merely trying to deal Hayes a defeat: Harlan was incidental, and anyone else appointed would have run the same gauntlet. Even here there were variations in motive, however. The Chairman of the Senate Judiciary Committee, George F. Edmunds of Vermont, was a man of rock-like integrity and stubbornness.[19] He distrusted Harlan's Republicanism and, apparently, opposed him for no other reason. He set about to collect whatever information he could that was critical, writing off to acquaintances in Kentucky such as Lincoln's Attorney General, James Speed. Speed was forced to acknowledge Harlan's sins--his opposition to the Civil War Amendments and the Civil Rights Bill, his support of McClellan for President in 1864, and his relatively recent conversion to Republicanism. But he concluded with a strong endorsement of his old friend:[20]

It is due to Gen'l Harlan to say that eight or ten years ago, he sloughed his old pro-slavery skin and has since been an earnest open and able advocate of what he had thought wrong or inexpedient. This I know from intimate intercourse with him since his removal to Louisville.

From the beginning of our civil troubles till General Harlan became anti-slavery the idea that had led his course was the integrity of the country. For that he was ready to sacrifice everything.

But if Edmunds assumed prominence due to his titular position as Chairman of the Judiciary Committee, his opposition was more or less rational and not self-interested. This was not as true of the real focus of Harlan's opposition, Senator Roscoe Conkling.[21] The New York machine leader and old-time spoilsman, together with Blaine, as Justice Miller hyperbolically said, "would prefer to take the chances of what would come from a democratic administration after the next election, to yielding any of their ancient rights of controlling public patronage and submit to Evarts, Schurz & Co. They profess to dislike the policy. They really want the offices."[22]

Regardless of the reasons for the trouble, it was serious enough to worry Harlan and his supporters. Various of these went or were sent to Washington to help; his young partner, "Gus" Wilson, spent the entire six weeks there. He later claimed that he had been of use "during the several months Senator Edmunds held up the nomination," apparently partly in countering the hostile moves of Henry V. Boynton.[23] Eli Murray also went to Washington at Harlan's request. As Harlan explained to President Hayes,[24]

I have information from Washington which leads me to believe that there is a purpose with some to postpone all consideration of my nomination until the regular session in December. Underlying this purpose is the desire to defeat my nomination not because my Republicanism is doubted but because I was a member of the Louisiana Commission. In order to cover this plan the air is being filled with charges against me, some of which cast doubt upon my fidelity to the Republican party, and some imputing to the Commission improper practices at New Orleans.

I have requested my friend Gen. Murray to proceed to Washington that he may, if it shall seem necessary, take such steps as he may deem proper for the protection of my good name against those who would assail it.

The Kentucky Democrats supported Harlan almost to a man. This was especially true of Senator James B. Beck who, as Harlan reminded him, had participated in Preston H. Leslie's campaign for the governorship against Harlan in 1871.[25] House members like John G. Carlisle also helped in lending influence, although of course they had no vote. So did John's old friend Tom Crittenden, now a Democratic Congressman from Missouri.

Crittenden provided both advice and help. Remarking that he had just talked with Senator Voorhees,[26] Crittenden admitted that "there is a fight against you," but went on, "you can't be beat. Keep quiet and be easy... I have reason to believe you will get out of the Committee all right." A few days later the Missourian reported having talked to the new Senator from Ohio, Stanley Matthews.[27] Since Matthews was a strong Hayes man there was no doubt how his vote would go. But Voorhees thought that Senator Maxey would support Harlan as well.[28] Tom Crittenden also told his brother to "tell Harlan to keep quiet," judging that he would be appointed unless he does "some more unworthy thing in a few days" than he has ever done before.[29]

Harlan defended himself as best he could, not in person, since he was not called to testify, but by letter. Beck presumably made the best use possible of the letter Harlan supplied him late in October, in which the nominee summarized his political record, claiming convincingly that he was really a Republican and had fundamentally changed his opinions from the time when he supported McClellan and opposed the Civil War amendments. As he pointed out, there was really no organized Republican party in Kentucky until after 1867, and he had been the most prominent leader of the party since that time.[30]

Harlan also defended his record as a member of the Louisiana Commission. Stalwarts had, of course, opposed the Commission itself and Hayes' use of its report to justify the withdrawal of troops from the beleaguered state; but to add to this there were charges--apparently stimulated in part by Henry Boynton--that the Commissioners had used bribery or were at least aware of its use in persuading Republican legislators to desert to the other side, while Harlan utterly denied that he or any other of the Commissioners had offered bribes, he was silent as to the rest of the charge. But since the charge was itself minor even if true--Boynton wrote no more to Bristow than that "Harlan knew that forty thousand dollars was raised by the Nicholls men to set the Nicholls government on its feet"[31] --he undoubtedly did not wish to dignify it by replying.

Harlan defended his resignation from the army in 1863 against the implication that it occurred because of his opposition to Lincoln's Emancipation Proclamation. The only possible defense was his own words written at the time; and while they were probably true, there was no further way to prove it.

Of course there was no way that Harlan could counter the opposition based on geographical location of circuits, but that was not in itself very serious anyway.

Finally there were the usual criticisms, in addition, made against many judicial appointees, that they are not good lawyers, have no judicial experience, and do not have a 'judicial temperament." Thus one writer who had lived in Kentucky from 1865 to 1867 wrote to Iowa Senator S. J. Kirkwood:[32]

Harlan... is not a jurist and never was accredited with being. Is not in full sympathy with the Republican party and never was. Never had any influence in his own state that amounted to anything.. He is in fact a milk and water politician[,] a political demogogue who all his life has been after office, but his fitness as a judge never entered the minds of his Kentucky friends...

Another critic said much the same:[33]

Harlan is deficient in legal and professional education, such as ought to be had by any one on the Supreme Bench. As for general scholarship or literary attainments, he has none. I defy any one to prove from any oral, or written, or printed utterance, he ever made that a literature, ancient or modern, ever existed...

But Harlan also had much active support, his old pre-war partner W. F. Bullock, now a Democrat, contradicted the above assesments of Harlan's legal abilities, calling him justly distinguished for his high legal attainments, his active and discriminating mind, his studious habits, and his high sense of Justice and honor."[34] And the judges of the Kentucky Court of Appeals (mostly Democrats) said that Harlan's personal character was "above reproach," and that "he is an able, enlightened and learned lawyer, and one of the most laborious and painstaking members of his profession."[35]

Lewis N. Dembitz--Louis D. Brandeis' father-in-law--agreed. Harlan, he said, was one of the two leaders of the Kentucky bar. "He has a fine judicial temper--he shows it by the fairness and moderation of his course as an advocate."[36]

An Indiana lawyer, doubtless swallowing his disappointment that his circuit would lose its representation on the Court, nevertheless told the President that Harlan's selection "would give more general and uniform satisfaction to the Republicans of our State than that of any other man in the South."[37]

The remarks in such letters--which could be multiplied--are doubtless overblown, yet just as certainly they contain an element of sincerity. John Harlan had a gift for friendship, a gift for advocacy, and he lived in a small, tightly knit legal community in which no one's defects could be easily hidden. Over a long period in politics he had inevitably made enemies, as well. But what seems remarkable is that so many of his political opponents seem to have respected him as a man, as a lawyer, and as a politician.

Over a six-week period the opposition gradually dwindled. By November 19 Senator Beck was able to assure the impatient Harlan "that you are to be reported favorably & I [do not] doubt soon will be confirmed."[38] on November 26, Texas Democratic Senator Joseph E. McDonald announced that Harlan had been favorably reported--apparently without a recorded committee vote.[39] A motion was placed before the Senate, in executive session November 29, that Harlan's nomination be confirmed (along with sixteen other Hayes nominations).[40] Conkling, still fighting the Stalwart battle against Hayes, moved that the resolution of confirmation be reconsidered--a motion which happily failed. The final confirmation was apparently by voice vote and included all seventeen appointees, and probably occurred on Monday, December 3.[41] The previous Friday Beck triumphantly wrote Harlan that his appointment was finally assured.[42]

….Voorhees and I were greatly delighted and went off half cocked. Maxey says [to] say 'unanimously' because I want him to know I was for him, & I was in a humor to oblige everybody.... The motion to reconsider, if it does not prevail falls & the confirmation stands & on Monday after 12 P.M the President will be advised & send the Comm[ission].... ft is all right you can't be beaten. I have seen both sides.... I think l can get ~U our side [the Democrats] to stand by you...

Many years later Mallie Harlan recollected the day (she apparently got her dates mixed, but there is no reason to doubt the essential accuracy of her tale).[43]

After lunch--as he was, naturally, somewhat restless because of the way in which his nomination was hanging fire in the Senate–his three boys urged him to join them in an impromptu game of foot-ball which took place upon a common in the outskirts of the city. With great glee they afterwards described the way in which their father had played "fullback" on their side, and how everyone had "stood from under" when he advance4 with great deliberation and dignity, to kick away the ball whenever it threatened their goal.

When my four "boys" (for my husband was always a boy along with his three sons) returned late that afternoon, to our Broadway home–tired and happy and hungry for their Thanksgiving Dinner--a telegram was waiting for him, informing him that on that very morning "the Senate had unanimously confirmed his nomination as an Associate Justice of the Supreme Court of the United States."

Endnotes

1. Army pay was suspended for the first quarter of the new fiscal year in order to avoid an earlier (hot summer) session. See Williams, The Life of Rutherford Birchard Hayes, II, p. 81 (1914). On March 18, Justice Miller wrote to a friend that the vacancy would not be filled "until the Senate is in session again." (Miller to William Pitt Ballinger, cited in Charles Fairman, Mr. Justice Miller and the Supreme Court (Cambridge: Harvard University Press) p. 352 (1939). But Miller at that time had no idea that it would be October before the Senate reconvened.
2. Fairman, op. cit. Miller consistently misspelled the name "Woods."
3. William B. Woods (1824-1887) had been an Ohio legislator, who settled in Alabama after the war and, as a Republican, was appointed U.S. Circuit Court judge in 1869; see DAB, XX, 505-506. Henry Clay Caldwell (1832-1915), born in Virginia, served in the Iowa legislature but was in 1864 appointed by Lincoln as U.S. District Court judge for Arkansas, serving in that capacity until 1890, when he was made a Circuit Court judge until his retirement in 1903; see DAB, III, 408.
4. In John P. Frank, "The Appointment of Supreme Court Justices: Prestige, Principles and Politics," 1941 Wisconsin Law Review 172, at 205.
5. Miller to Ballinger, May 6, 1877. Fairman, Miller, op. cit., p. 358.
6. Thomas Drummond (1809-1890) was a U.S. District Court judge in Illinois from 1850 to 1869; Grant promoted him to the Circuit Court in 1869, a post he occupied until 1884. NCAB, XX, 111-112.
7. See note 5, p. 357.
8. The politics of the appointment-especially as regards Harlan–are surveyed ably by Ellwood W. Lewis, "Document: The Appointment of Mr. Justice Harlan," 29 Indiana Law Journal 46 (1953).
9. MacVeagh to Hayes, August 21, 1877. Hayes Library.
10. Charles W. Fairbanks to an unknown recipient merely called "My dear Uncle," September 25, 1877. Hayes Library.
11. Apparently John D. Howland, who is otherwise unknown.
12. Hayes to Smith, September 29, 1877. Hayes Library.
13. Smith to Hayes, October 3, 1877. Hayes Library.
14. Smith to Hayes, October 10, 1877. Hayes Library.
15. C.B. Lawrence to Hayes, August 31, 1877. Hayes Library.
16. Miller to Ballinger, November 21, 1877. Quoted in Fairman, Miller, op. cit., p. 369.
17. Hayes called him "an eager candidate," Williams, Hayes Diary, op. cit., p. 471. Timothy O. Howe (1816-1883), Justice of Wisconsin Supreme Court, Republican Senator 1861-1879, Postmaster General in Arthur’s Cabinet 1881-1883. DAB, IX, 297-98.
18. Fuller to Hannibal Hamlin, October 29, 1877. Fuller Papers, Chicago Historical Society. Hamlin was a Senator from Maine, and had been Vice President during Lincoln’s first term.
19. George F. Edmunds (1828-1919), served in the Senate from 1866 to 1891. He was regarded as "the ablest constitutional lawyer in Congress," but was also noted for his "lack of amiability and contentious nature." DAB, VI, 24-27. Zachariah Chandler (1813-1879), Republican boss of Michigan, Senator 1857-1875, Secretary of the Interior under Grant 1875-1877, DAB, III, 618.
20. Speed to Edmunds, November 10, 1877. Quoted in Frank, op. cit., pp. 208-209.
21. Roscoe Conkling (1829-1888), a competitor for the Presidential nomination in 1876, was Senator from New York from 1867 to 1881 and one of the most powerful figures in that body. See David M. Jordan, Roscoe Conkling of New York (Ithaca: Cornell University Press, 1971).
22. Miller to Ballinger, October 28, 1877. Quoted in Fairman, Miller, op. cit., p. 366.
23. Wilson to Richard D. Harlan, April 11, 1930. Harlan Papers, LC.
24. Harlan to Hayes, October 31, 1877. Hayes Library.
25. Harlan to Beck, October 31, 1877. Filson Club.
26. Senator Daniel W. Voorhees (1827-1897), influential Democratic Senator from Indiana from 1877 to 1897. DAB, XIX, 291. John G. Carlisle (1835-1910) served in the House from Kentucky from 1877 to 1890, and was Speaker for three terms; regarded as a "great" Speaker. Senator 1890-1893, Secretary of the Treasury under Cleveland 1893-1897. DAB, III, 494-96.
27. Stanley Matthews (1824-1889), Republican Senator from Ohio 1877-1879, he was nominated for the Supreme Court by Hayes in 1881 but failed of confirmation; nominated again by Garfield, he served until his death in 1889. DAB, XII, 418-420.
28. Senator Samuel B. Maxey (1825-1895). Confederate General and Senator from Texas 1875-1887. DAB, XII, 435-436.
29. Crittenden to Harlan, November 21, and 27, 1877; Crittenden to his brother (otherwise unidentified), November 10, 1877. Harlan Papers, UL.
30. Harlan to Beck, op. cit.
31. Boynton to Bristow, December 10, 1877. Hayes Library. One W. H. Painter used Boynton’s information for a broadside attack on Harlan’s character. He wrote: "I think a man who is by his own confession a particepts criminis to the late debauchery & revolution at New Orleans will be a dishonor to the bench." Painter to Edmunds, October 4, 1877. Quoted in Lewis, "Document," op. cit., n. 79.
32. John Ledwick to Kirkwood, November 17, 1877, Quoted in Lewis, Ibid., p. 70. Samuel J. Kirkwood (1813-1894), was Governor of Iowa and Republican Senator 1877-1881; Secretary of the Interior under Garfield. DAB, X, 436-37.
33. William Brown to Edmunds, November 19, 1877. Quoted in Lewis, Ibid., n. 88.
34. W. F. Bullock to Hayes, September 10, 1877. Hayes Library.
35. Signed by Chief Judge W. Lindsay, Will S. Pryor, J.M. Elliott and M.H. Cofer, September 7, 1877. Hayes Library.
36. Lewis N. Demitz to Hayes, September 26, 1877. Hayes Library.
37. E.B. Martindale of Indianapolis to Hayes, September 25, 1877. Hayes Library.
38. Beck to Harlan, probably November 19, 1877. Harlan Papers, UL.
39. 21 Sen, J. 1877-1879 139 (1901). All of the dates given in the text after November 19 are uncertain, since there exists no official record of when the Senate did what.
40. Ibid., 143.
41. This is the date that seems to be indicated in Beck’s letter, see below, n. 42.
42. Beck to Harlan, November 30, 1877. Harlan Papers, UL.
43. Malvina Harlan, Some Memories . . . op. cit., p. 79.