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1787-1800

September 26, 1789
The Senate Confirms Six Nominees to the Supreme Court

Portrait of John Rutledge

The U.S. Senate once confirmed six nominations to the Supreme Court on a single day, and even more remarkably, that occurred just one day after the president submitted those names to the Senate. Given that it now takes months for a single nominee to clear the process from nomination to confirmation, it probably does not come as a surprise that this event occurred more than 220 years ago, on September 26, 1789. Not only did the senators vote to confirm all of George Washington’s first Supreme Court nominations that day, but they found time to consent to a long list of federal judges, attorneys, and marshals from every state, and to approve the first attorney general.

There were a number of reasons for these accelerated confirmations. There was no Judiciary Committee. The senators handled all nominations as a committee of the whole. There were also no political parties, although pro and anti administration factions were beginning to form. There was no Department of Justice, other than the attorney general. And the federal judiciary had not yet asserted the right to declare acts of Congress as unconstitutional, so there were no complaints about judicial activism. President Washington had wisely selected jurists from six states, and since there were only 11 states at the time (North Carolina and Rhode Island not yet having ratified the constitution), the home state senators of the nominees constituted the majority of the Senate. The reason they confirmed only six justice nominations was because that was the size of the Supreme Court in 1789. It was another 50 years before Congress expanded the court to nine.

While it is true that the Senate rubber stamped President Washington's first judicial nominations, very soon afterwards the senators began asserting their authority to advise and consent more rigorously. One of the six justices confirmed in 1789 was John Rutledge, a distinguished jurist from South Carolina, who had been one of the framers of the Constitution. Rutledge later resigned from the Court to return to South Carolina. Then in 1795, President Washington nominated him to become chief justice. Although obviously well qualified, Rutledge made the mistake of delivering a fiery speech that condemned the recent Jay Treaty with Great Britain. This did not endear him to the senators who had just voted to ratify the treaty. They also heard reports from South Carolina that described Rutledge as prone to “mad frollicks” and “frequently so much deranged as to be in a great measure deprived of his senses.”

Because the Senate was adjourned at the time, Rutledge became chief justice via a recess appointment. But when senators reconvened in December 1795, they condemned his intemperate remarks and voted down his nomination. The close scrutiny that John Rutledge received during his second nomination therefore came closer to the way nominations to the court have evolved over time, more than his speedy confirmation as one of the first six nominees.

 
  

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