Washington [412]
The Constitution was especially vague about the judiciary, which left a good deal to congressional discretion. The document did not specify the number of Supreme Court justices, so the Judiciary Act of 1789 set them at six; it also established thirteen district courts and three circuit courts. To balance federal and state power, each circuit court blended two Supreme Court justices, riding the circuit, with a district court judge selected from the particular state in which the trial was held. For Supreme Court justices, the need to “ride circuit” twice yearly was the most onerous part of their job, a lonesome task that could consume weeks or months. In the absence of federal courthouses, circuit courts met in government buildings or roadside taverns. Having to travel backcountry roads and sleep in squalid inns further detracted from judicial prestige. Such was the misery of riding circuit that several of Washington’s judicial selections declined for that reason, prompting a high turnover in the Supreme Court’s early years. In early April 1790 Washington inquired whether the justices had any problems to report, and in September they returned a lengthy list of objections. They were especially upset with having to ride circuit, noting that it created an untenable legal situation, since they might have to rule as Supreme Court justices on appeals of cases they had tried in those very courts.
In no area did Washington exert more painstaking effort than in selecting judges, for he regarded the judicial branch as “that department which must be considered as the keystone of our political fabric,” as he told Jay in October 1789.34 Once the Judiciary Act passed in late September 1789, he nominated Jay as chief justice along with five associate judges from five different states, establishing regional diversity as an important criterion in such appointments. In stark contrast to the acrimonious hearings in later American history, the six justices breezed through the Senate confirmation process in forty-eight hours, their selection sparking little debate. Also without apparent protest, Washington named a large batch of district judges, U.S. attorneys, and marshals. In all, George Washington would appoint a record eleven justices to the Supreme Court.
As secretary of foreign affairs under the Articles of Confederation, John Jay kept warm the seat at the State Department until Jefferson arrived in New York. Washington felt palpable affection for Jay, confiding to him late in the war, “I entertain the friendly sentiments toward you, which I have ever experienced since our first acquaintance.”35 In sending along his commission as chief justice, Washington appended an enthusiastic note: “It is with singular pleasure that I address you as Chief Justice of the Supreme Court of the United States.”36 Prematurely balding, John Jay was a lean man with a pale, ascetic face, an aquiline nose, a melancholy air, and a wary look in his piercing, intelligent eyes. He had not handled a legal case in more than a decade and his skills had grown rusty, but Washington wanted a well-known national figure whose reputation transcended legal expertise. While Washington widened the distance between the presidency and the Senate, he at first narrowed it between the presidency and the Supreme Court, soliciting Jay’s viewpoint on an eclectic array of issues ranging from the national debt, Indian affairs, and the census to counterfeit coins, postal roads, and inspection of beef exports.
On February 1, 1790, the Supreme Court held its inaugural meeting in the Merchants Exchange