The Last of Us: Part II

Yep, this one's about Franklin Pierce.

Last week, I asked whether any federal judges other than Juan Torruella and John Davies had participated in the Olympics. I’d like to thank the reader who pointed out that Judge Carlos Bea, a senior judge on the Ninth Circuit who still hears cases regularly, was a member of the Cuban basketball team in the 1952 Olympics in Helsinki. Not only that, but Judge Bea’s son, Sebastian Bea, represented the United States in rowing in the 2000 Olympics in Sydney, winning a silver medal in the men’s coxless pair event. I am duly impressed.

Now, to the main event. Last week, I observed that, as recently as November 4, 2018, there were active appointees of Lyndon Johnson (Manuel Real), Richard Nixon (Gerald Tjoflat), and Gerald Ford (Joel Flaum and Juan Torruella). As such, in the early stages of the Trump Administration, there were active appointees of ten Presidents: Johnson, Nixon, Ford, Carter, Reagan, George H.W. Bush, Clinton, George W. Bush, Obama, and Trump.

I was 95% sure this was an all-time record. All the stars were aligned:

• Two historically long-serving judges from two different presidents—Judge Real, the third-longest-serving active judge ever, and Judge Tjoflat, the fourth-longest-serving active judge ever—were still on the bench.

• There were some short presidencies in the preceding decades (Ford, Carter, George H.W. Bush), and no long presidencies (there are no more judges from FDR’s presidency).

• There are way more judges today than in the past. President Carter appointed 262 judges in his four-year term, versus 7 for John Tyler and 8 for James Buchanan in their four-year terms. The more judges there are, the more likely it is there will be outlier judges who serve a really long time.

• Life expectancies are longer today than in the 19th century, again increasing the possibility that judges will serve a really long time.

I was wrong.

On two occasions in the 19th century, there were actively-serving appointees of 12 presidents.

How could this be?

As with so many things in life, the answer lies in Franklin Pierce.

This is Dall-E’s rendition of vaporwave Franklin Pierce:

Franklin Pierce became president in 1853. He was preceded by Millard Fillmore and followed by James Buchanan. The Fillmore-Pierce-Buchanan sequence was likely the worst string of presidencies in American history (although I’d rank Andrew Johnson, who opposed the Fourteenth Amendment, as the worst president ever). Franklin Pierce appointed one Supreme Court Justice, John Archibald Campbell, who wrote a horrible concurrence in Dred Scott and then departed the Court to become Confederate Assistant Secretary of War.

At the time of Justice Campbell’s confirmation in 1853, there were actively serving appointees of 12 presidents: John Adams, Thomas Jefferson, James Madison, James Monroe, John Quincy Adams, Andrew Jackson, Martin Van Buren, John Tyler, James K. Polk, Zachary Taylor, Millard Fillmore, and Franklin Pierce. (William Henry Harrison didn’t appoint any judges before he caught the cold.) This requires some explanation.

The active John Adams appointee was William Cranch, who was an active judge for 54 years, from 1801 to 1855—the second-longest active tenure in American history. As many of you may remember from Marbury v. Madison, President Adams appointed a bunch of “midnight judges” at the tail end of his presidency, and then called upon then-Secretary of State John Marshall to deliver the judges their commissions, but he couldn’t deliver them all in time. The next president, Thomas Jefferson, refused to deliver the undelivered commissions. When one of the unlucky judges sought a writ of mandamus in the Supreme Court, the same John Marshall, now the Chief Justice, took the opportunity to declare that federal courts could hold federal statutes unconstitutional, which is why we now get to sell dogfighting videos, gamble on sports, and get trademarks on the word “FUCT.”

Well, it turns out that Marshall delivered most of the commissions in time, and in particular, he managed to get to 32-year-old William Cranch on the last day of Adams’ presidency. Phew!

Cranch was a judge on the “Circuit Court for the District of Columbia” or C.C.D.C. The C.C.D.C. had a confusing mix of trial and appellate jurisdiction. It had its own dedicated judges, unlike the other “circuits,” which had none of their own judges but were instead mostly populated by district judges and Supreme Court Justices riding circuit. Also confusing, when Cranch was appointed, the C.C.D.C. overlapped somehow with the “United States District Court for the District of Potomac,” which was created in 1801 purely for court-packing purposes, but which was quickly abolished.

Cranch is most famous for being the Supreme Court’s Reporter of Decisions at the time of Marbury v. Madison. In 1803, one could not click “reload” at 10:00 AM at www.supremecourt.gov. A physical book of decisions had to be created. This was the job of the “Reporter of Decisions”—the guy who went to the courthouse, listened to the lawyers’ arguments and tried to take notes on them, collected the parchments or whatever containing the written decisions, and published them at the local printing press. When you cite Marbury you are supposed to cite “1 Cranch 137.” This means that in Cranch’s first volume of reported decisions, Marbury appears at page 137, right after the seminal Turner v. Fendall, which held that “under the law of Virginia, it was the duty of the sheriff to have the money made under the fieri facias in court on the return day of the writ, and that he was not justified in paying over the same.”

In his first set of Reports, Cranch actually felt the need to write a Preface explaining why it’s a good idea to have reports of Supreme Court decisions. Here is why it is a good idea for precedential decisions to be written down:

Much of that uncertainty of the law, which is so frequently, and perhaps so justly, the subject of complaint in this country, may be attributed to the want of American reports.

Many of the causes, which are the subject of litigation in our courts, arise upon circumstances peculiar to our situation and laws, and little information can be derived from English authorities to lead to a correct decision.

Uniformity, in such cases, can not be expected where the judicial authority is shared among such a vast number of independent tribunals, unless the decisions of the various courts are made known to each other.  Even in the same court, analogy of judgment can not be maintained if its adjudications are suffered to be forgotten….

In a government which is emphatically stiled a government of laws, the least possible range ought to be left for the discretion of the judge.  Whatever tends to render the laws certain, equally tends to limit that discretion; and perhaps nothing conduces more to that object than the publication of reports.  Every case decided is a check upon the judge.  He can not decide a similar case differently, without strong reasons, which, for his own justification, he will wish to make public.  The avenues to corruption are thus obstructed, and the sources of litigation closed.

Pretty convincing.

How did Cranch get to become the Reporter of Decisions? No one really knows. This wasn’t even an official position. It seems that Cranch, who wanted to make some extra money, just sort of hung around at the courthouse until he became the Reporter. He was apparently a bad Reporter, publishing reports several years late, and after 13 years the Supreme Court asked him to stop. But he stayed on as a federal judge until he was 86 years old.

I mentioned that Cranch, an Adams appointee, was the #2 longest serving active judge ever. #1 on the list is Henry Potter, a Jefferson appointee who was also still around during the Franklin Pierce administration. He was an active judge for over 56 years, staying on until he died in his 90s.

Potter also has a “midnight judges” connection. Several of John Adams’ hastily-appointed “midnight judges” declined the job even after they were confirmed, which I find strange. Didn’t President Adams’ H.R. office ask these people if they wanted the job before they were appointed? (Although a similar thing happened with a Biden U.S. Attorney.) This created a bunch of vacancies for Jefferson, and Potter got a job on the new 5th Circuit. In 1802 Congress abolished all of these judgeships, but Jefferson still liked Potter so Potter got a job serving on three district courts simultaneously: the U.S. District Court for the District of Albemarle, the U.S. District Court for the District of Cape Fear, and the U.S. District Court for the District of Pamptico, all in North Carolina. He kept these jobs for a long time. Reading about courts of this era is a bit like reading about animal life in the Cambrian—you get all these exotic forms, like Hallucigenia and Opabinia, that proliferate before evolution settles down.

Anyway, when Franklin Pierce appointed his first judge in 1853, there was one John Adams appointee (Cranch), one Jefferson appointee (Potter), one Madison appointee, three Monroe appointees, one John Quincy Adams appointee, plus a couple of appointees of every other president except for William Henry Harrison and George Washington, for a total of 12.

The number hit 12 again in 1861, when President Lincoln appointed his first judges. Potter and Cranch (the final John Adams and Jefferson holdouts) had died by that point, but there were now Buchanan and Lincoln appointees to replace them. Meanwhile, the Madison appointee, James Sewall Morsell, was still on the bench, as were appointees of the post-Madison presidents. Morsell, like Cranch, served on the C.C.D.C. His tenure ended unceremoniously in 1863 after 48 years in active service, when Congress abolished the C.C.D.C., leaving the 88-year-old Morsell, who was still going strong, without a job.

I don’t think the number ever hit 12 after that. The number fluctuated but reached 11 again in 1889, when Benjamin Harrison appointed his first judge; at the time there were appointees of Millard Fillmore, Franklin Pierce, James Buchanan, Abraham Lincoln, Andrew Johnson, Ulysses Grant, Rutherford Hayes, James Garfield, Chester Arthur, Grover Cleveland, and Benjamin Harrison still around.

Some notes on senior judges

In 1919, Congress permitted lower-court federal judges to assume “senior status,” which allows them to be semi-retired but continue to hear cases. They are not considered to be “active judges,” but are nonetheless, in a colloquial sense, active judges, trying cases and writing judicial opinions.

Even if we include senior judges in these tallies, the 19th century record of simultaneously-serving judges from 12 administrations remains unmatched. As noted above, at the time the first Trump nominees were confirmed, there were active appointees from 10 presidents dating back to L.B.J. In addition, a senior-status Kennedy appointee on the Middle District of Pennsylvania, William Nealon, was still hearing cases, for a total of 11 presidents. At the time, Judge Nealon was sitting in a courthouse that had been named after himself 19 years earlier, a good sign that he had been around for awhile. He passed away on August 30, 2018, three days after becoming the longest-serving district judge in American history.

The number was also at 11 early in the Obama administration, as the final Eisenhower appointee, Myron Crocker, died in 2010. The Biden administration barely missed this milestone. The final L.B.J. appointee, Jack Weinstein, passed away on June 15, 2021, after the first three Biden nominees had been confirmed but a few days before they actually began active service.

A few more notes about senior judges:

• With Judge Weinstein’s passing, the longest-serving federal judge (including senior judges) is Walter Stapleton, who was appointed to the District of Delaware by President Nixon on October 14, 1970 and later elevated to the Third Circuit. It does not appear that he still hears cases.

• The longest-serving federal judges who still hear cases are Gerald Tjoflat and J. Clifford Wallace. Both were appointed to district courts on October 16, 1970, and were later elevated to the Eleventh and Ninth Circuits respectively.

• The longest-serving federal district judge is James King, who was appointed to the Southern District of Florida on October 19, 1970. October 1970 was apparently a really big month for long-serving senior judges.

• There is one (1) judge still alive who was appointed to a federal district court that no longer exists. The answer to this extremely obscure trivia question is Harold Baker, who was appointed by Carter to the now-defunct Eastern District of Illinois, and later was transferred to the Central District when the Eastern District was eliminated.

For those brave enough to have slogged this far, there is one more piece of trivia to share.

As I mentioned above, there were judges (including senior judges) from 11 presidents serving simultaneously in the early part of the Trump and Obama administrations. Biden, Bush II, Clinton, and Bush I never hit this milestone. And, going back further, I was 99% sure that other recent presidents wouldn’t hit the milestone either, given the length of FDR’s presidency.

I was wrong again.

In August 1974, two judges who had been nominated by Nixon weren’t confirmed until after Nixon resigned, so Ford appointed them. I’m going to call those Ford appointees, because well, my Substack, my choice. In the fall of 1974, the number was at 11. How could that be?!?!

Here is how.

• A single Woodrow Wilson appointee, Joseph Woodrough, was still going strong at the age of 102. He was appointed to the District of Nebraska by Wilson in 1916 and later elevated to the 8th Circuit by FDR. He ended up passing away in 1977 at age 104, after having served as a federal judge for over 61 years, easily the highest total in American history.

• There was one more Warren Harding appointee: Orie Phillips, appointed by Harding to the D.N.M. over 50 years earlier and later elevated to the 10th Circuit by Hoover. He passed away in November 1974. Allegedly Phillips was the runner-up for a SCOTUS spot behind Benjamin Cardozo.

• There was one more Calvin Coolidge appointee, Thomas Swan, who was 96 years old.

• There were two more Hoover appointees, plus lots of FDR, Truman, Eisenhower, Kennedy, Johnson, and Nixon appointees, plus the first Ford appointees.

Groovy.

I don’t have any fact-checkers on staff, so if I made mistakes in this post (or any others), definitely let me know.

Next week’s post will address Dupree v. Younger, a forthcoming Supreme Court case addressing whether legal issues addressed at summary judgment must be re-raised in a Rule 50(b) motion to be preserved on appeal. This is not a crowd-pleasing topic, and keeping it interesting will be quadruple-axel level degree of difficulty. But I have some ideas.