The Midnight Justice
I realized that I’ve never posted about the fun story of Justice Peter Daniel, who was confirmed to the Court in 1841 under strange circumstances. (It’s was part of my Andrew Jackson research, and now it is part of my research on the Constitution and political parties).
In 1840, the Whigs won a sweeping victory (“Tippecanoe and Tyler Too”) ending twelve years of Democratic control of the White House. They also won control of Congress for the first time. In February 1841, Justice Philip Barbour (a Democrat named to the Court by Jackson) died. President Martin Van Buren decided to act immediately and nominate Daniel (another Democrat) to the Court. He was confirmed shortly before Inauguration Day.
It is hard to imagine something like this being tolerated today. A lame-duck President (just beaten at the polls) choosing a new Justice confirmed by a lame-duck Senate (also repudiated at the polls). Whigs in the Senate boycotted the vote and protested that Van Buren was repeating the precedent of John Adams and his “Midnight Judges.” Since we got Chief Justice John Marshall as part of that bargain, describing the effort as illegitimate does pose problems, but anyway . . .
What did the Whigs do about Justice Daniel after Inauguration Day? They could not impeach and convict him, but they could make his life difficult. So they passed a circuit reorganization bill that gave Daniel circuit riding duties in Arkansas and Mississippi–as far from Washington as possible. Given that he was from Virginia, this assignment was especially burdensome and unusual in the sense that circuit riding was normally tied to where you lived and had practiced. Congress may have hoped that Daniel would resign as a result, but he did not. He stayed on the Court long enough to join the majority in Dred Scott.