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Ethan Trex
Washington’s Shaky Search for a Second Chief Justice
by Ethan Trex

supreme-court-building.jpgIf everything goes smoothly for the Judge Sotomayor, she will be quickly confirmed by the Senate and enjoy a long career of ironing out the finer points of the Constitution. Of course, getting confirmed isn’t always a breeze. Finding a suitable nominee for such a lasting position must be a stressful choice for any administration, but presidents can take some solace in the fact that even George Washington couldn’t bat a thousand when it came to getting his nominees confirmed. How could our first president’s nominees not skate onto the Court? Here’s the story of one of Washington’s shakier choices.

John Rutledge may not be a household name in 2009, but he was a heavy hitter among the country’s founding fathers. He was a delegate to the Continental Congress, served as President of South Carolina, and later became the state’s governor. Rutledge was also a delegate to the Constitutional Convention, where he fought hard for slavery and proposed that society be broken down into classes. In 1789, George Washington appointed Rutledge to the Supreme Court, and the Senate happily confirmed the nomination.

rutledge.jpgRutledge wasn’t exactly an ideal associate justice, though. In fact, he was pretty much as lackadaisical as a member could be. Even though Rutledge enthusiastically accepted his spot on the Supreme Court, he never actually showed up for any of the Court’s meetings. In 1791, he decided to bag the Supreme Court thing altogether and took a new post as the chief justice of the South Carolina Supreme Court.

Most people would probably be fairly peeved if they secured a job for someone who never actually bothered to come to work, but George Washington was apparently a forgiving sort. John Jay, the first Chief Justice of the United States, won the governorship of New York in 1795, so the Supreme Court was going to need a new top man. Rutledge contacted Washington to offer his services, and Washington decided to nominate the formerly truant judge to the country’s highest court for a second time.

Rutledge turned up for the Supreme Court’s session in August 1795 ready to go to work, but since the Senate was in a recess, he couldn’t receive his confirmation before his new job was set to begin. No big deal, though; Washington simply wrote Rutledge a temporary commission until the Senate could have a confirmation hearing. When Washington signed the commission, Rutledge became the second Chief Justice of the United States.

Even with his spotty track record and temporary commission, Rutledge might have been able to get his official confirmation from the Senate. He couldn’t keep his big mouth shut, though. In mid-July Rutledge gave a public speech lambasting the Jay Treaty, a controversial pact that the U.S. had negotiated to ease tensions with the British in 1794. He felt that the Jay Treaty, which dealt with Anglo-American commerce, the U.S.-Canada border, and wartime debts, was too strongly pro-English, and he didn’t make any bones about it.

Rutledge supposedly claimed in his inflammatory tirade “that he had rather the President should die than sign that puerile instrument.”

Washington, who had worked with Alexander Hamilton and John Jay on the treaty, was none too pleased with Rutledge’s angry condemnation of the pact. Neither was the Senate. Many senators wondered if such an ill-timed speech might be indicative of Rutledge being more than a wee bit mentally ill, which fit with a rumor that had circulated since his wife’s death in 1792. When the Senate convened in December, one of its first orders of business was to quickly reject Rutledge’s nomination, which made him the first Supreme Court nominee ever to get the ax from the Senate.

The five-month stint as Chief Justice ended up being the South Carolinian’s last term in public office. Washington, for his part, decided to play it a bit safer with his next nominee and plucked Rutledge’s replacement, Oliver Ellsworth of Connecticut, out of the Senate’s ranks.

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