7 June/July/August 2017 Federal Bar Council Quarterly

Waldorf is undergoing a massive option” was invoked) by a 54- considering King’s nomination renovation, and for now is out of 45 vote in the Senate on April 7, (for, among other reasons, defer- the banquet business – it seemed 2017 (he is now the 101st Associ- ence to Buchanan, who a number salutary in any case. The coun- ate Justice of the Court). There of senators thought wanted a seat cil’s newly-installed executive have been lots of other conten- on the Court), King withdrew his director, Anna Stowe DeNicola, tious nominations, of course name. Undeterred, Tyler nomi- got a baptism by fire, manag- (see, e.g., “The Legal Battle Over nated King again on December 4; ing this major event barely two Brandeis,” Federal Bar Council after the Senate once again post- months into her new post. She News (December 1997)). One poned consideration of King’s reported considerable positive such battle – about which little is nomination, Tyler pulled the plug feedback from the change to the known – concerns the seat of Jus- on February 7, 1845. Grand Hyatt, and sees the change tice Henry Baldwin. In the weeks remaining in the as an opportunity to refresh how Baldwin was nominated to Tyler Administration, the lame the Council does its business in the Court by President Andrew duck president put forward a sec- this respect. Jackson and confirmed by the ond candidate: John M. Read, yet Senate on January 6, 1830. Pre- another prominent viously, he had been a prominent . Perhaps this would get Philadelphia lawyer, a congress- through because Read was a friend Legal History man, and a trusted political ally of of Buchanan (and Buchanan was Jackson. As for his jurispruden- widely viewed as a likely cabinet Filling Justice tial legacy, Professors G. Edward member of the next president). Baldwin’s Seat White and Gerald Gunther have Since nothing happened by the labeled Baldwin an “incoheren[t] end of Tyler’s term, however, the By C. Evan Stewart …jurist.” With his death on April nomination was still-born when 21, 1844, a vacancy on the Court James Polk (“Young Hickory” – needed to be filled. so named as ’s Because Baldwin’s seat was protégé) took the presidential of- considered a “” fice on March 4, 1845. seat, President sought Buchanan became Polk’s to replace Baldwin with another secretary of state, but the vacant Keystoner. Tyler, the first vice seat just sat there, as the president president to succeed to the presi- took no action (with Congress not dency after the death of his prede- meeting in session until Decem- cessor (William Henry Harrison), ber of that year). In September was wildly unpopular with both 1845, Thomas Ritchie, editor the Whig and Democratic par- of the Washington Union (the We have all recently wit- ties. So how did “his Accidency” Democratic Party’s national or- nessed two bruising nominations do in getting someone through gan), informed Polk that Buchan- to the U.S. Supreme Court: first the Senate? Not so well. Tyler an wanted to go on the Court. came President Obama’s 2016 first offered the seat to Pennsyl- Shortly thereafter, Buchanan met nomination of Judge Merrick vania’s senator, , with the president to discuss the Garland, upon which the Senate who declined. Tyler then nomi- vacant seat. Buchanan played never took action; and next up nated Edward King, the presiding political Cassandra with Polk, was President Trump’s nomina- judge of the Philadelphia Court acknowledging that he had long tion of Judge , who of Common Pleas, on June 5, been interested in being on the was confirmed (after the “nuclear 1844. After the Senate postponed Court, while at the same time em- Federal Bar Council Quarterly June/July/August 2017 8 phasizing his importance to the President George Dallas, Andrew Keystoner, and he was an obvious new administration in overseeing Beaumont (“with whom I served contender for 1848, who wanted the nation’s foreign affairs. Two in Congress and in whom I have as many friends taken care of as months later, he opted to stay in great confidence”), and Con- possible. On the other hand was the Cabinet, which suited Polk gressman David Wilmot (author Buchanan, who now held the pre- just fine. That left the issue of of the famous “Wilmot Provi- mier cabinet position, but who what to do with the vacant seat. so” in 1846)), Polk sent George also eyed the presidency and was Buchanan “was most anxious” Woodward’s name to the Senate ever vigilant about his Pennsyl- to have Read appointed to the on December 23, 1845. Wood- vania power-base. There was Court, and urged his nomination ward, who had been a Wilkes- also a third “hand” who needed on Polk. But Polk was not buy- Barre lawyer before becoming a to be factored in as well: Simon ing. Why? Although Polk told judge on the Fourth Judicial Dis- Cameron. another colleague that the reason trict Court of Pennsylvania, was Cameron had been a very was because he was “determined (in Polk’s words) “a sound, origi- successful businessman in Penn- to have a first rate man there,” nal, & consistent democrat, of the sylvania for over two decades the real reason was that Read, strict construction school,…[and] and, prior to 1845, he had also at an earlier point in his political a man of fine talents & well qual- been very active in the Pennsyl- career, had been a Federalist (the ified.” But that was not really the vania Democratic party. When predecessor party to the Whigs). complete story. Buchanan vacated his Senate seat As Polk confided in his Diary: on February 17, 1845 (in antici- The Complexities of Pennsylva- pation of becoming Polk’s Secre- I have never known an in- nia’s Democratic Party tary of State), Cameron threw his stance of a Federalist who hat into the ring to succeed him. after arriving at the age of 30 Polk’s public announcement Cameron’s opponent? None other professed to change his opin- that he would serve only one than George Woodward. Wood- ions, who was to be relied on presidential term was intended to ward, in fact, was the party estab- in his constitutional opinions. free him to unite the Democratic lishment’s candidate. But he lost All of them who have been ap- Party; it had the opposite result, out to Cameron when the state pointed to the Supreme Court as likely and unlikely competi- legislature voted: 16 Democrats, Bench, after having secured a tors for the 1848 nomination pro- together with 44 Whigs and sev- place for life [,] became very liferated and caused no shortage en Native Americans (the nativist soon broadly Federal and of headaches. This was particu- party), supported Cameron, who latitudinarian in all their deci- larly true when it came to mak- defeated Woodward 67 to 55. sions involving questions of ing patronage decisions – with Woodward, Dallas, and Polk Constitutional power…. I re- fractured groups under the par- (and many other party elders) solved to appoint no man who ty’s tent, any decision favoring were very upset with the result. was not an original Democrat one would upset the other(s). As Polk (and Dallas) were thus de- & strict constructionist, and Polk confided to one party leader, termined not to be helpful to who would be less likely to the process cost him so much “la- Cameron on patronage matters, relapse into the Broad Fed- bor and trouble” that “I sincerely in which the new senator was eral doctrines of Judge Mar- wish I had no office to bestow.” a skilled operator (he once ob- shall & Judge Story. And of all the states, Pennsylva- served that patronage served nia was most problematic in this either of two objectives: “love Instead, based upon the ad- regard. or fear”). Buchanan played a vice of Buchanan’s rival Pennsyl- On the one hand, Polk’s vice somewhat more cagey patron- vania Democrats (including Vice president, George Dallas, was a age game with the new senator, 9 June/July/August 2017 Federal Bar Council Quarterly who in frustration blurted out to which (according to Polk) “en- that Buchanan was also working Buchanan in September 1845: “I tirely satisfied” the Secretary of to that end: “It will be deeply wish you would tell me whether State. painful to me, if I ascertain that there is to be peace or war.” To Not surprisingly, that was not my suspicions are correct, but if the president, Cameron professed the case; and to make matters I do so ascertain, I will act with to be eager to work with the ad- worse, a fuming Cameron was promptness and energy towards ministration on its priorities; in waiting to meet with Buchanan Mr. Buchanan, whatever the con- reality, however, he was lying in to discuss how to block Wood- sequences to myself or my ad- wait to deliver a body-blow to ward’s elevation to the Court. ministration may be.” Young Hickory. Buchanan, however, took the po- Dallas was obviously pleased sition that he would take no part The Senate’s Advice and with the Woodward selection. in the nomination, pro or con. Consent on Woodward’s Buchanan was not, and made At the same time, Buchanan did Nomination clear his views to Polk on Christ- nothing to dissuade Cameron mas Day. Visibly agitated, Bu- from using every tool in his po- On January 20, 1846, the chanan told Polk he had not slept litical tool box to hurt the Dallas Senate (in closed session) began the two nights since the nomina- wing of the party (and obviously debate on Woodward’s nomina- tion. His complaints were (i) that Polk, as well). tion. Two days later, Woodward Polk “had not informed him of The local media in Pennsyl- was rejected by a vote of 29 to 20 [Polk’s] intention to nominate” vania was mobilized to dredge – six Democrats defected to join Woodward; and (ii) “his friends up Woodward’s nativist remarks 23 Whigs in denying Woodward in Pennsylvania” believed that from his formative political days; a seat on the Court. That night, Polk was wielding patronage also highlighted was Woodward’s Polk was told the bad news, and to his disfavor (one politician wobbly tariff record – Woodward he reflected on what had gone opined that “Dallas . . . [had] had vacillated between tariff sup- wrong in his diary. His first focus prevail[ed ] over ‘Pennsylvania’s port (a very important state issue) was on Buchanan – perhaps Bu- favorite son,’ yet the ass bears his and espousing free trade (a posi- chanan had helped deep-six the burden & still shakes his ears, & tion widely viewed as pro-South). nomination because he wanted is Secy of State!”; another wrote More troubling for the nomina- the seat for himself: “This I hope that “We hear that the Secretary tion was the fact that he had no is a mistaken impression.” of State was not advised of the senatorial rabbi. Without a Penn- Then, together with Dallas nomination of Woodward until sylvania Democratic senator to and other political intimates, after it was sent to the Senate! lead the charge, Woodward tried Polk reviewed how they had lost Modern politicians are like span- to get Massachusetts Whig, Dan- the six Democratic Senators. iels; the more they are beaten, the iel Webster, to help out; but that Polk dismissed Senator James more they love their masters.”). did not work. Indeed, the entire Wescott of Florida with his ulti- Polk was rather dismissive of Whig senatorial caucus was de- mate put-down – he was “a Whig Buchanan’s concerns, stating it termined to vote en masse against in disguise.” Senator David was his prerogative to make such the nominee; that would not be a Yulee (Florida) was a “pseudo a nomination, that he had heard problem, however, assuming the Democrat,” and he termed Cam- Buchanan out on his preference Democratic majority held steady eron “at heart a Whig”. Polk (Read), but he – the president – for the president’s nominee. also thought that because Bu- preferred Woodward. As for pa- Polk knew that Cameron was chanan was “intimate” friends tronage matters generally, Polk “active in his exertions to have with Cameron, Ambrose Sevier went on to review his other Penn- Mr. Woodward’s nomination… (Arkansas) (he “almost lived at sylvania appointments, a review rejected.” And he suspected Buchanan’s”), and Wescott, the Federal Bar Council Quarterly June/July/August 2017 10

Secretary of State, could have White House on January 28 to Cameron chose to bide his time prevented those senators (and report on hearsay from one of his until seven Democratic senators Thomas Hart Benton (Missouri) congressional colleagues. Ac- were absent from the Capital at- as well) from voting against cording to Wilmot’s colleague, tending a funeral on May 25, Woodward. The president con- Cameron had quoted Wescott as 1846; he then called up Horn’s tinued to suspect Buchanan’s saying – vis-à-vis Polk’s nomi- nomination and, with a unani- hand was behind Cameron’s open nation of Woodward: “the only mous Whig voting bloc and a and notorious activities; and if way to treat an ugly Negro who handful of Democrats, it went he could prove it he “would in- was unruly, was to give him a down to defeat. stantly dismiss him.” Buchanan d____n drubbing at the start and A furious Polk resubmitted subsequently sent on an emis- he would learn to behave him- Horn’s nomination to the Sen- sary (John Mason, the attorney self.” It was further reported to ate. Cameron, however, was able general) to Polk (i) to deny that Polk that Wescott had not only to peel away a larger number of he had played any role in the re- subsequently affirmed he made Democrats and the Senate reject- jection of Woodward, and (ii) to this “low and vulgar” remark, ed Horn for a second time on June re-change his mind about want- but he also repeated it. The next 24, 1846. Polk cussed out Cam- ing to be appointed to the Court. day, Wilmot wrote the president eron in his diary as “a managing This last bit of news only con- to correct his hearsay report: tricky man, in whom no reliance firmed Polk’s worst suspicions Wescott had made the remark is to be placed,…. I consider him of Buchanan’s motivations and only in the context of “dealing little better than a Whig.” behind the scenes actions. Polk with obstinate negroes” general- told his Attorney General that ly; it was Cameron who had ap- Yet Another Nominee, “Mr. Buchanan had brought all propriated the remark as to how Eventually his troubles on himself; that I to deal with presidential nomi- would take my own time, and re- nations. Polk’s ultimate verdict? Having seen how effective ceive further developments be- “I consider both [Cameron and Cameron had been in cobbling fore I made another nomination.” Wescott]…guilty of gross rude- together a handful of Democrats Polk also told Mason that if “any ness & vulgarity.” with a unified Whig bloc in the member of my cabinet” is found Senate, Polk decided that he to be working with the Whigs to The Immediate Aftermath of would not do anything vis-à-vis reject his nominations, he would Woodward’s Defeat the open seat for a while. Then, find “a lion in his path.” Polk’s upon concluding that Buchanan “further developments” mainly While Buchanan moped had not in fact “taken affirma- related to the president’s nomi- around in a “melancholy and dis- tive action” against Woodward’s nation of his friend and former satisfied manner,” Cameron was nomination, the president on June congressman Henry Horn to be actively plotting to humiliate the 10, 1846 offered the seat (once the Collector of the Port of Phil- president again – this time on more) to his Secretary of State adelphia. Were Horn to receive Horn’s nomination. The Key- (having been told that Buchan- a similar fate, the president told stone senator decided to make an really did want a seat on the Ritchie that “the chain would be no pretense at playing possum. Court). Two and one half weeks snapped.” Instead, Cameron called on Polk later, Buchanan accepted. But he And if the president were not and told the president he would wanted to be nominated imme- angry enough at his Secretary of withdraw his opposition to Horn diately, fearing that his political State and the defection of the six if Polk would tell Horn to play foes (e.g., Dallas & Cameron) Democratic senators, Congress- patronage ball with him. An ob- would be able to generate suffi- man Wilmot visited him at the stinate Polk refused. Rebuffed, cient opposition if given enough 11 June/July/August 2017 Federal Bar Council Quarterly time. Polk, however, wanted to of substantive due process). 1857 (Dred Scott was handed wait until just before Congress Grier had perhaps foreshad- down on March 6, 1857). adjourned. After weeks of fret- owed his sympathies with his Interestingly, Grier later ting, Buchanan went to the presi- Southern judicial brethren upheld the constitutionality dent on August 1, 1846 and said when he co-presided over a of President Lincoln’s naval (once again) he would pass on the trial in 1851 (with U.S. Dis- blockade of Southern ports in Court, wishing instead to “remain trict Court Judge John K. the Prize Cases, 67 U.S. 635 in the Cabinet” until the end of Kane) that dealt with crimi- (1863). Notwithstanding the Polk’s term. nally enforcing the terms fact that Congress had never Polk now turned to yet anoth- of the Fugitive Slave Law: declared war on the states that er Pennsylvania state court judge, United States v. Hanway. Be- seceded, Grier wrote that “[a] one who had been considered (and cause of Grier’s charge to the civil war is never solemnly passed over) during the run-up to jury regarding the legal defi- declared,” and held that Lin- Woodward’s nomination: Robert nition of “treason,” the jury coln’s power(s) as command- C. Grier, a Jacksonian Democrat (after 15 minutes) acquitted er-in-chief allowed him to use who wore judicial robes in Al- the defendant. Nonetheless, the army and navy as he saw legheny County. Perhaps out of during the proceeding Grier fit to ensure the survivability fatigue, but more likely due to had also referred to aboli- of the Union. the fact that Grier had not chosen tionists as “infuriated fanat- • Polk’s criticism of Cameron’s sides in fractious/tribal state poli- ics and unprincipled dema- fealty to the Democratic Par- tics, both Cameron and Buchanan gogues” who “denounced the ty was spot-on. When he ran blessed the president’s nominee. constitution, the laws, and the for re-election to the Senate, On August 3, 1846, the president Bible.” See also Moore v. Il- Cameron sought the nomi- submitted Judge Grier’s name linois, 55 U.S. (14 How.) 13 nation of the Know-Nothing to the Senate, and the next day a (1852) (upholding Illinois Party (which he did not se- unanimous Senate approved Gri- law that made it a crime to cure). Thereafter, he joined er as an Associate Justice of the hide runaway slaves). More Pennsylvania’s People’s Par- Supreme Court. The 28 month importantly and problematic ty, which morphed into the odyssey to find a replacement for (as readers of the Federal Republican Party. With that Henry Baldwin was over. Bar Council Quarterly know party’s backing, Cameron (see “The Worst Supreme was returned to the Senate in Postscripts Court Decision, Ever!” May 1857. Three years later, he 2016), Grier engaged in ex was a favorite son candidate • Grier’s tenure on the Court parte communications with for the Republican presiden- (1846-70) is mainly known President-Elect James Bu- tial nomination (one of my for his infamous concurrence chanan prior to the release of ancestors, William M. Stew- in Dred Scott v. Sanford, 60 the Dred Scott decision; not art, was pledged to him on the U.S. (19 How.) 393 (1857) only did Grier accede to Bu- first ballot, and (as instructed) (agreeing with Chief Justice chanan’s lobbying for Grier switched to support Abe Lin- Taney’s ruling that, because to concur in Taney’s odious coln on the second and third the opinion, but Grier also tipped ballots). In exchange for of 1820 violated fundamen- off Buchanan as to the deci- Cameron’s support for Lin- tal property rights “found” sion itself, which enabled coln on those later ballots, in the Fifth Amendment, the Buchanan to reference the the Keystone senator was statute was unconstitutional “likely” outcome in his in- nominated to serve as Secre- – thus, creating the doctrine augural address on March 4, tary of War in the new presi- Federal Bar Council Quarterly June/July/August 2017 12

dent’s cabinet. Cameron was Legal History Nixon’s legal career – his edu- a poor choice, however, and cation at Duke Law School, his in 1862 he was moved out of Nixon the Lawyer time as a young attorney not yet the cabinet and shipped off to involved in politics, and his work Russia as the American min- By Joseph Marutollo as a law firm partner here in New ister. His tenure in Russia York City – played critical roles was also short-lived. After in shaping Nixon as president. the Civil War, Cameron was These periods laid the founda- once more sent to the Senate tion for the best characteristics in 1867, where he served for of President Nixon, i.e., the bril- another 10 years (he was suc- liant and hard-working leader ceeded by his son). devoted to peace, as well as the • The starting point for those worst characteristics of President who want to understand the Nixon, i.e., the cynical and para- Polk presidency is his four noid man bent on destroying his volume presidential diary: enemies. Milo Quaife, ed., Diary of One recent book – Evan James K. Polk (Chicago, Thomas’s single-volume biogra- 1910). Probably the best (but phy, Being Nixon – takes a close limited) biography of Polk and evenhanded look at Nixon’s is Charles Sellers’ James K. life, including his legal career. Polk Continentalist, 1843- Thomas, a reporter, writer, and 1846 (Princeton, 1966); and This year marks the 45th an- editor at Newsweek for 24 years, the best biography of Bu- niversary of the Watergate bur- graciously agreed to an interview chanan (our worst president) glary. At the time, few would for this article. is Philip Klein’s President have imagined that the five men James Buchanan: A Biog- arrested for the botched break-in “Old Iron Butt” Nixon at Duke raphy (Pennsylvania, 1962). at the headquarters of the Demo- Law School The starting point for un- cratic National Committee would derstanding more about the create a sequence of events cul- Born in 1913, Nixon grew up Senate’s rejection of Wood- minating in the resignation of the in Yorba Linda, California. Nix- ward’s nomination is Daniel sitting American president, Rich- on would later say that his fam- Curran’s “Polk, Politics, and ard M. Nixon. Today, Watergate ily was “poor, but the glory of it Patronage: The Rejection remains a watershed moment in was we didn’t know it.” Nixon, of George W. Woodward’s American politics, and Nixon re- the second of five children, had Nomination to the Supreme mains one of the most analyzed a challenging upbringing. His Court,” The Pennsylvania leaders in American history. In- father, Frank, operated a failed Magazine of History and deed, decades after he left office, lemon farm in Yorba Linda. Biography (July, 1997). Fi- best-selling books continue to be Nixon’s father later ran – with nally, the best compendium written about Nixon, his psyche, the help of his wife and sons – a of current, scholarly work on and the Shakespearian tragedy of combination grocery store and this era of American history his career. gas station. Nixon experienced can be found in Joel Silbey’s Often overlooked in the study tragedy twice in his early life: his A Companion to the Antebel- of Nixon, however, is Nixon’s younger brother, Arthur, died in lum Presidents 1837-1861 role as a lawyer. As discussed 1925 after a short illness, and his (Wiley, 2014). below, three distinct periods in older brother, Harold, died of tu-