Journal of Supreme Court History

The Judicial Bookshelf DONALD GRIER STEPHENSON, JR. “The first task of a President after taking the oath of office,” observed Professor Edward S. Corwin long ago, “is to create ‘an administration’; that is to say, a more or less integrated body of officials through whom he can act.”1 Corwin’s statement in turn can be read as merely a paraphrase of Chief Justice (and former President) Taft’s earlier insistence that the “vesting of the executive power in the President was essen­ tially a grant ofthe power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates.”2 Both Corwin and Taft stated a truth often overlooked on Election Day by voters who, understandably perhaps, are singularly focused on the task at hand: casting a ballot for the nominee of one party or another. Yet, in reality, voters are choosing far more than a President and Vice President, for any incoming President will both sooner and later make an indeterminate number of appointments over the course of even a single term. Coupled with the new chief executive’s personality, values, objec­ tives, and the events that happen on his watch, it is these personnel selections that lend a distinct cast or color to each administration, distinguishing it from both those that came before and from those that will follow. In light of the unique nature of the Presidency—the office was, after all, an American invention, one without true parallel elsewhere—the significance ofthe appointing power in the larger scheme of the political system was realized practically at the outset. “It should never be forgotten, insisted Justice Joseph Story in his Commentaries on the Constitution “that in a republican government offices are established and are to be filled, not to gratify private interests and private attach­ ments; not as a means of corrupt influence or individual profit; but for purposes of the highest public good; to give dignity, strength, purity, and energy to the administration ofthe laws.”3 Furthermore, as legal scholar and Story contemporary William Rawle of Penn­ sylvania believed, the appointment process revealed as much about the person who made the appointment as about the one who received it. “A proper selection and appoint­ ment of subordinate officers is one of the strongest marks of a powerful mind.”4 Simi­ larly, in his biography of George Washington, Chief Justice John Marshall placed consider­ able emphasis on the care with which the first THE JUDICIAL BOOKSHELF 439 President constructed “his cabinet council” where “[i]n its composition, public opinion as well as intrinsic worth had been consulted, and a high degree ofcharacter had been combined with real talent.”5 Yet Washington learned first-hand that the appointing power, shared with the Senate, included thejudiciary as well, a responsibility he took very seriously. Indeed, it was one of his first major concerns as President: who would sit on the Supreme Court ofthe United States? “Impressed with a conviction that the true administration of justice is the firmest pillar ofgood government,” he wrote soon-tobe Attorney General Edmund Randolph in 1789, “I have considered the first arrangement of the judicial department as essential to the happiness of our country and the stability of its political system.” Under the Articles of Confederation, which the recently ratified Constitution had replaced, there had been no nationaljudiciary. The Court’s role in the new political system was therefore unclear, but Washington realized the impact the Court might have in the young Republic. This required, he told Randolph, “the selection of the fittest characters to expound the laws and dispense justice . . ,”6 As he selected the six Justices Congress had authorized in the Judiciary Act of 1789, Washington also made sure that each section of the nation was represented and that the six were strong supporters of the new Constitution, leading Marshall later to affirm that in his choices for “high judicial offices” the first President had been “guided by the same principles”7 that drove his selections for the Cabinet. Thus in electing a President, voters are choosing someone who will not only con­ struct an administration, but one who...