 | 202207 5Origins of Senatorial Courtesy
July 5, 2022
On August 5, 1789, the Senate rejected for the first time a presidential nominee. At the urging of Georgia senator James Gunn, the Senate failed to confirm Benjamin Fishbourn, President George Washington’s nominee to serve as federal naval officer for the Port of Savannah. The Senate’s rejection of Fishbourn has been regarded as the first assertion of “senatorial courtesy.”
On August 5, 1789, the Senate rejected for the first time a presidential nominee. At the urging of Georgia senator James Gunn, the Senate failed to confirm Benjamin Fishbourn, President George Washington’s nominee to serve as federal naval officer for the Port of Savannah. The Senate’s rejection of Fishbourn has been regarded as the first assertion of “senatorial courtesy,” the practice whereby senators defer to the wishes of a colleague who objects to an individual nominated to serve in his or her state. Senatorial courtesy also has been interpreted to mean that a president should consult with senators of his or her party when nominating individuals to serve in positions in their home states. Such a practice was not envisioned by the framers. In fact, in The Federalist, No. 66, Alexander Hamilton wrote: “There will, of course, be no exertion of choice [in executive appointments] on the part of Senators. They can only ratify or reject the choice of the President.”1
Like other office seekers, Fishbourn had written to Washington in hopes of securing a federal appointment in the new government. Fishbourn had served in the Georgia legislature and had been appointed earlier that year as state naval officer of Savannah by the state’s governor. He hoped to fill the same role for the federal government. Washington had informed Fishbourn that he would assume the presidency “free from engagements of every kind and nature whatsoever,” and would make appointments only with “justice” and “the public good” in mind. Fishbourn benefitted, however, from the support of General Anthony Wayne, under whom he had served as aide-de-camp during the Revolutionary War. Wayne had a close bond with Washington and had recommended Fishbourn for a position in the government. As a result, Fishbourn’s name was added to President Washington’s long list of nominees to serve as customs collectors, naval officers, and land surveyors throughout the country that was presented to the Senate on August 3, 1789. The Senate confirmed most of the nominees on the list the next day. Two other nominees from Georgia were confirmed on August 5, but the Senate, at the urging of Senator Gunn, rejected Fishbourn.2
Why did Senator Gunn object to Fishbourn? The drama surrounding the nomination can be traced back to a duel challenge and personal rivalries. Affairs of honor, in which men in the public eye were willing to exchange gunfire and risk death in defense of their reputations, were an important element of politics in the early American republic. In 1785 James Gunn, while serving as an army captain, feuded with Major General Nathanael Greene over a rather arcane military policy. At some point during the Revolutionary War, James Gunn’s horse was killed in battle. He was able to select a government-procured horse to use during the remainder of the war, as was custom. The problem arose when Gunn traded the horse, which was considered to be quite valuable, for two other horses and an enslaved individual. General Greene objected to the transaction, not for the atrocity that an enslaved person was considered property equivalent to a horse, but because Gunn had dispensed with government property as if it was his personal property. Greene called for a military court of inquiry to investigate. The court ruled that Gunn was justified in trading the horse, but Greene was not satisfied. He ordered Gunn to return the horse and referred the matter to the Continental Congress. Congress adopted resolutions supporting Greene’s actions and ordered Gunn to replace the horse with “another equally good.”3
After the war, both Gunn and Greene settled in Georgia. Gunn, still smarting from what he saw as Greene’s attack on his character, challenged Greene to a duel. Greene refused the challenge, claiming that a commanding officer could not be accountable to a subordinate for his actions while in command. Gunn reportedly declared that “he would attack [Greene] wherever he met him” and began to carry pistols in the event of an encounter. The confrontation never occurred, and Greene received support from Washington himself, who assured him that his “honor and reputation will stand” for refusing to accept Gunn’s challenge.4
What does all of this have to do with Fishbourn and senatorial courtesy? Fishbourn had publicly sided with Greene during the dispute, and Gunn never forgot that. When asked by another senator to explain his reasons for objecting to Fishbourn, Gunn responded simply with “personal invective and abuse.” This was enough to sway other senators to vote down the nomination.5
Angry about the rejection of his nominee, Washington wrote in a message to the Senate, “Permit me to submit to your consideration whether on occasions where the propriety of Nominations appear questionable to you, it would not be expedient to communicate that circumstance to me, and thereby avail yourselves of the information which led me to make them, and which I would with pleasure lay before you.” Washington, according to one source, even went to the Chamber to ask the Senate’s reasons for the rejection, to which Gunn informed him that the Senate owed him no explanation.6
Fishbourn was stung by the rejection. His supporters attempted to undo the damage to his reputation. Anthony Wayne wrote to Washington to assure him that the “unmerited and wanton attack upon [Fishbourn's] Character by Mr. Gunn” was groundless and that he would never have recommended Fishbourn for the position if the charges were true. Wayne published a defense of Fishbourn signed by notable men from Savannah.7
A month later, Fishbourn sent a letter to Washington in hopes of repairing his reputation after such a public embarrassment. He asked the president to write him indicating that he held no prejudices against him based on “representations having been made against me in the Senate.” As he left Georgia and public life, he hoped “I may have it to say I have the sanction as well as the good wishes of his Excellency the President of the United States.” Fishbourn was probably disappointed to receive a reply only from an aide to Washington, stating “I am directed by him to inform you that when he nominated you for Naval Officer of the Port of Savannah he was ignorant of any charge existing against you—and, not having, since that time, had any other exibit (sic) of the facts which were alledged (sic) in the Senate . . . he does not consider himself competent to give any opinion on the subject.”8
Senator James Gunn’s objection to Fishbourn for what he saw as an affront to his public honor—even if Fishbourn was but a minor player in the affair—established an enduring precedent in the Senate. Despite periodic efforts by presidents to push back on senators’ attempts to control executive appointments, the custom of senatorial courtesy became firmly established by the late 19th century. In 1906, two years prior to his run for president, William Howard Taft observed that presidents were “naturally quite dependent on . . . advice and recommendation” of senators, such that “the appointing power is in effect in their hands subject only to a veto by the President.” When considering a nomination in executive session—held behind closed doors until 1929—senators merely had to rise and announce that a nominee was “personally obnoxious” or “personally objectionable” to them, without any further explanation. They could depend on the deference of Senate colleagues in rejecting the nominee. The Senate Judiciary Committee formalized a version of senatorial courtesy through use of the “blue slip,” a blue sheet of paper on which a senator could register support for or opposition to a judicial nominee to serve in his or her state. In 1960 William Proxmire of Wisconsin called senatorial courtesy “the ultimate senatorial weapon,” a “nuclear warhead intercontinental ballistic missile of Senate nomination action.” While there have been changes to the rules and customs governing Senate advice and consent over the past half century—for example, senators no longer announce on the floor that a nominee is “personally obnoxious” to them—individual senators continue to exert a great deal of power over the nomination and confirmation process.9
Notes
1. Robert C. Byrd, The Senate, 1789-1989: Addresses on the History of the United States Senate, vol. 2, ed. Wendy Wolff, S. Doc. 100-20, 100th Cong., 1st sess. (Washington, DC: Government Printing Office, 1991), 31; Hamilton, The Federalist, No. 66, quoted in George H. Haynes, The Senate of the United States: Its History and Practice (Cambridge: Houghton Mifflin Co., 1938), 2:736.
2. Mitchel A. Sollenberger, “Georgia’s Influence on the U. S. Senate: A Reassessment of the Rejection of Benjamin Fishbourn and the Origin of Senatorial Courtesy,” Georgia Historical Quarterly 93, no. 2 (2009): 182–90; “From George Washington to Benjamin Fishbourn, 23 December 1788,” Founders Online, National Archives, accessed June 22, 2022, https://founders.archives.gov/documents/Washington/05-01-02-0148. [Original source: The Papers of George Washington, Presidential Series, vol. 1, 24 September 1788 – 31 March 1789, ed. Dorothy Twohig (Charlottesville: University Press of Virginia, 1987), 198–200.]; “To George Washington from Anthony Wayne, 10 May 1789,” Founders Online, National Archives, accessed June 22, 2022, https://founders.archives.gov/documents/Washington/05-02-02-0189. [Original source: The Papers of George Washington, Presidential Series, vol. 2, 1 April 1789 – 15 June 1789, ed. Dorothy Twohig (Charlottesville: University Press of Virginia, 1987), 261–64.]
3. Joanne B. Freeman, Affairs of Honor: National Politics in the Early Republic (New Haven: Yale University Press, 2002); George R. Lamplugh, “The Importance of Being Truculent: James Gunn, the Chatham Militia, and Georgia Politics, 1782–1789,” Georgia Historical Quarterly 80, no. 2 (Summer 1996): 228–29; Sollenberger, “Georgia’s Influence,” 185–87.
4. Sollenberger, “Georgia’s Influence,” 187; Lamplugh, “Importance of Being Truculent,” 232.
5. Fergus M. Bordewich, The First Federal Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government (New York: Simon and Schuster, 2016), 132; Lamplugh, “Importance of Being Truculent,” 240–43.
6. “From George Washington to Benjamin Fishbourn, 23 December 1788,” Founders Online, National Archives, accessed June 22, 2022, https://founders.archives.gov/documents/Washington/05-01-02-0148. [Original source: The Papers of George Washington, Presidential Series, vol. 1, 198–200.] Washington’s visit to the Senate was recounted years later by the son of Washington aide Tobias Lear. Notably, William Maclay was absent on that day, but he committed to his diary the comments of a fellow senator about Washington’s intemperate response to the rejection, though it is not clear if that occurred in person in the Senate chamber. Kenneth R. Bowling and Helen E. Veit, eds., Diary of William Maclay and Other Notes on Senate Debates, vol. 9 of Documentary History of the First Federal Congress of the United States of America, March 4, 1789–March 3, 1791, eds. Linda Grant De Pauw et al. (Baltimore: The Johns Hopkins University Press, 1986), 121.
7. “To George Washington from Anthony Wayne, 30 August 1789,” Founders Online, National Archives, accessed June 22, 2022, https://founders.archives.gov/documents/Washington/05-03-02-0330. [Original source: The Papers of George Washington, Presidential Series, vol. 3, 15 June 1789–5 September 1789, ed. Dorothy Twohig (Charlottesville: University Press of Virginia, 1989), 569–70.]
8. “To George Washington from Benjamin Fishbourn, 25 September 1789,” Founders Online, National Archives, accessed June 22, 2022, https://founders.archives.gov/documents/Washington/05-04-02-0054 [Original source: The Papers of George Washington, Presidential Series, vol. 4, 8 September 1789 – 15 January 1790, ed. Dorothy Twohig (Charlottesville: University Press of Virginia, 1993), 81–83; fn1.] This was quite a change in tone from December 1788, when Washington wrote in a letter to Fishbourn: “For you may rest assured, Sir, that, while I feel a sincere pleasure in hearing of the prosperity of my army acquaintances in general, the satisfaction is of a nature still more interesting, when the success has attended an officer with whose services I was more particularly acquainted.”; “From George Washington to Benjamin Fishbourn, 23 December 1788,” Founders Online, National Archives, accessed June 22, 2022, https://founders.archives.gov/documents/Washington/05-01-02-0148 [Original source: The Papers of George Washington, Presidential Series, vol. 1, 198–200.]
9. William Howard Taft, Four Aspects of Civic Duty (New York: Scribner’s Sons, 1906), 98–99, quoted in Haynes, Senate of the United States, 1:736; Congressional Record, 86th Cong., 2nd Sess., April 19, 1960, 8159; Michael J. Gerhardt, The Federal Appointments Process (Durham: Duke University Press, 2000), 143–53.
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 | 202107 1Reasserting Checks and Balances: The National Emergencies Act of 1976
July 1, 2021
In 1973 the Senate assigned a herculean task to a small temporary committee. The Special Committee on the Termination of the National Emergency (renamed the Special Committee on National Emergencies and Delegated Emergency Powers in 1974), co-chaired by Democrat Frank Church of Idaho and Republican Charles Mathias of Maryland, would investigate outdated emergency powers granted to presidents by Congress in the previous half century. The inquiry’s surprising findings convinced Congress to pass the National Emergencies Act of 1976.
In 1973 the Senate assigned a herculean task to a small temporary committee. The Special Committee on the Termination of the National Emergency (renamed the Special Committee on National Emergencies and Delegated Emergency Powers in 1974), co-chaired by Democrat Frank Church of Idaho and Republican Charles Mathias of Maryland, would investigate outdated emergency powers granted to presidents by Congress in the previous half century. The inquiry’s surprising findings convinced Congress to pass the National Emergencies Act of 1976.
The story of this obscure Senate committee begins with the Vietnam War. In 1968 Republican presidential candidate Richard Nixon pledged to end the war if elected. In the spring of 1970, however, President Nixon secretly expanded the war into Cambodia—without congressional approval. Weeks later, Nixon announced the expansion of the war into Cambodia on national television. The administration’s actions infuriated many senators, especially Frank Church, a long-time Vietnam War critic. Church drafted a proposal—later known as the Cooper-Church amendment—to prevent congressionally appropriated funds from being used in Cambodia. Secretary of Defense Melvin Laird quickly rendered this effort moot. If Congress halted funding for the Cambodia effort, Laird warned, the Pentagon would fund the operation under the emergency provisions of a Civil War-era law called the Feed and Forage Act. With that law, Congress had granted the U.S. Cavalry the authority to purchase feed for its horses if previously appropriated money had run out while Congress was not in session. Laird explained that the provision had been used in 1958 in Lebanon and in 1961 in Berlin to fund U.S. military actions.1
The administration’s ability to circumvent Congress under the authority of a century-old law troubled Church. He had developed a reputation among his colleagues as a checks and balances proselytizer, routinely sermonizing that growing executive power threatened the health of constitutional government. When Nixon’s predecessor, Democrat Lyndon Johnson, occupied the White House, Democratic majorities in Congress felt little urgency to limit the powers of a president of their own party, and Church’s homilies fell on deaf ears, but the Nixon administration’s invasion of Cambodia converted some of Church’s colleagues to his cause. One of them, Republican Charles “Mac” Mathias of Maryland, insisted that Congress had a role to play in holding every president accountable—regardless of party. On January 6, 1973, the Senate created the Special Committee on the Termination of the National Emergency. Church and Mathias would lead the inquiry, joined by six colleagues and a small committee staff.
Identifying the powers that Congress had conferred on presidents during times of emergency proved to be a complex task. In the pre-personal computer era, searching hundreds of printed government publications for delegated emergency powers was extraordinarily time-consuming. After months of digging, committee staff learned that the U.S. Air Force maintained a searchable list of statutes on a computer in Colorado. Using that database and other published paper sources, investigators painstakingly compiled a list of 470 powers that Congress had granted to presidents in the previous 50 years during times of crisis, such as depression or war. “Taken together, these hundreds of statutes clothe the president with virtually unlimited power with which he can affect the lives of American citizens in a host of all-encompassing ways,” Church wrote, including seizing property and commodities, instituting martial law, and controlling transportation and communication. Though these crises had ended, Congress had not officially cancelled or revoked the powers it had granted to administrations to address them. As the Nixon administration had demonstrated, presidents could exercise these powers without congressional approval. Four national emergencies remained in effect—including one on the books since 1933! “It may be news to most Americans,” explained one Washington Post reporter, that “we have been living for at least 40 years under a state of emergency rule.”2
The committee’s investigation found that the legislative branch had rarely limited presidents’ emergency powers. The judicial branch, by contrast, had occasionally constrained those powers. For example, the Supreme Court firmly rebuffed President Harry Truman during the Korean War. The president had issued an executive order to seize control of some steel mills in 1952. Truman insisted that, as commander in chief, he had the authority to take action to avoid steel production slowdowns likely to be caused by an anticipated labor strike. The Court’s landmark decision in Youngstown Sheet & Tube Company v. Sawyer found that no law provided for the president to seize control of private property. Associate Justice Robert Jackson wrote that presidents enjoyed maximum power when they worked under the express or implied authority of Congress, but presidents who took steps explicitly at odds with the wishes of Congress worked “at [the] lowest ebb” of their constitutional power.3
The committee’s exhaustive research as well as several high-profile congressional investigations, including the Senate Watergate inquiry of 1973–74, convinced many in Congress that the time had come to reassert congressional checks and balances. The House introduced the National Emergencies Act in 1975 and the Senate passed a slightly amended version of that bill by voice vote in August 1976. The House agreed to the Senate’s amended bill, and President Gerald Ford signed the National Emergencies Act into law on September 14, 1976. The new law ended four existing states of emergency and instituted accountability and reporting requirements for future emergencies.4
Notes
1. Frank Church, “Ending Emergency Government,” American Bar Association Journal 63 (February 1977): 197–99.
2. “Bill Miller, Staff Director, Church Committee," Oral History Interview, May 5, 2014, Senate Historical Office, Washington, D.C.; Church, “Ending Emergency Government,” 197–99; Ronald Goldfarb, “The Permanent State of Emergency,” Washington Post, January 6, 1974, B1; Special Committee on the Termination of the National Emergency, Emergency Powers Statutes: Provisions of Federal Law Now in Effect Delegating to the Executive Extraordinary Authority in Time of National Emergency, S. Rep. 93-549, 93rd Cong., 1st sess., November 19, 1973.
3. "Youngstown Sheet & Tube Company v. Sawyer," Oyez, accessed June 16, 2021, https://www.oyez.org/cases/1940-1955/343us579.
4. “Major Congressional Action: National Emergencies,” Congressional Quarterly Almanac 32 (Washington: Congressional Quarterly, 1976): 521–22.
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 | 202105 3Senate Progressives vs. the Federal Courts
May 3, 2021
In the early 20th century, a group of progressive senators from midwestern and western states arrived in Washington committed to expanding the role of the federal government to address the economic and social challenges of industrialization. To accomplish these goals, they had to tackle another challenge—the power of the federal judiciary.
In the early 20th century, a group of progressive senators from midwestern and western states arrived in Washington committed to expanding the role of the federal government to address the economic and social challenges of industrialization. To accomplish these goals, they had to tackle another challenge—the power of the federal judiciary. Senate progressives like Robert La Follette of Wisconsin, William Borah of Idaho, George Norris of Nebraska, and Robert Owen of Oklahoma viewed the federal courts as a growing obstacle to their reformist agenda and worked to limit their power.1
Their top target was the United States Supreme Court. Under a broad interpretation of the Fourteenth Amendment to the Constitution and its guarantee of “due process of law,” the Supreme Court, beginning in the 1890s, used judicial review to an unprecedented extent in order to declare state laws unconstitutional. The Court weakened the power of state governments to regulate the rates of railroads and other public utilities. It struck down state laws regulating the wages and hours of workers, most famously in the 1905 case Lochner v. New York, in which the Court ruled that a law limiting the number of hours a baker could work was an infringement on a worker’s “liberty of contract.”2
The Supreme Court struck down federal laws as well. When Congress passed a law in 1916 banning child labor—a bill co-sponsored in the Senate by Robert Owen—the Court declared it unconstitutional two years later in the case of Hammer v. Dagenhart. In 1923 the Court also invalidated a federal law establishing a minimum wage for women in the District of Columbia.3
The progressives also had concerns about the actions of lower courts. When corporations challenged state regulations, federal district judges issued injunctions barring state officials from enforcing the laws. Federal judges handed down injunctions to stop labor unions from engaging in boycotts and certain strike tactics. District judges ordered the arrest of those who violated their injunctions for contempt of court. Labor leaders and progressive politicians denounced “government by injunction” and what they saw as an abuse of judicial power.4
Progressives, including those in the Senate, responded with proposals to make federal judges more accountable to the people. In 1911 Robert Owen proposed that a majority of both houses of Congress have the power to recall a judge and remove him from office. “The Federal judiciary has become the bulwark of privilege,” he stated in a 1911 speech, “and ought to be made immediately subject to legislative recall by the representatives of the people.” In 1918, after the Court struck down the federal ban on child labor in a 5-4 decision, Owen rejected the notion that a single judge could be the determining factor in nullifying “the matured public opinion of the country as expressed by Congress.” He introduced a new bill to reinstate the ban and included a provision to ban the Court from striking it down.5
Owen was not alone in his attacks on the Court. Similarly, William Borah saw closely divided decisions as “a matter of deep regret.” He introduced legislation in 1923 that would have required the support of at least seven of the nine justices on the Court to invalidate a statute. When the Court once again struck down a federal anti–child labor law in 1922, Robert La Follette condemned these “judicial usurpations” and called for a constitutional amendment to allow Congress to override the Supreme Court by simply re-passing any laws declared unconstitutional.6
Progressives made up a small coalition within the Senate in the 1920s, and while they did not have enough congressional support to pass their court proposals, they asserted what power they could. Progressive Republicans like Senators La Follette, Borah, and Hiram Johnson of California represented a small portion of the Senate’s Republican caucus and were often at odds with the caucus’s more powerful Old Guard members. This division became apparent by 1921 in the relationship between Senate progressives and Chief Justice William Howard Taft.
La Follette had already battled with Taft while he was president and had helped to defeat Taft’s campaign for a second term in 1912. Subsequently, La Follette, Borah, and Johnson were three of the four senators to vote against Taft’s appointment to the Court in 1921. Along with Progressive Democrats like Owen and Thomas Walsh of Montana, they continued to frustrate Taft during his tenure as chief justice.
Taft, who had served as a federal circuit judge in the 1890s and later defended the power of the courts as president of the American Bar Association in 1914, had his own goals for the federal judiciary. In his view, the problem with the courts was not judicial review or injunctions—he praised both as indispensable tools to protect property rights from political majorities. Rather, he believed that the federal courts needed to become more efficient in handling their rising caseloads, and this meant giving the chief justice “executive authority” over the lower courts. In 1922 Taft drafted a bill with Attorney General Harry M. Daugherty, introduced in the Senate by Taft ally Albert Cummins of Iowa, to create a conference of federal circuit judges headed by the chief justice that would gather caseload information from the lower courts. The legislation also proposed appointing a new group of at-large judges and giving the conference the power to send them to districts across the country with backlogs of cases.7
Progressive Republicans, along with many Democrats, were in no rush to strengthen the power of the chief justice over the judiciary, especially not that of the conservative Taft. George Norris even opposed the idea of judges gathering in Washington to be influenced by the chief justice. Norris used his time during the Senate debate over Taft’s bill to call for abolishing the lower federal courts altogether and returning jurisdiction to the state courts.8
The progressive Republicans joined forces with southern Democrats to oppose Taft’s plan. Senators jealously protected the influence they had in presidential nominations of district and circuit judges who would preside in their states. Southern senators argued that the chief justice would have power to send northern “carpet-bagging” judges to southern courts, possibly to enforce a proposed federal anti-lynching law under consideration in 1922. Tennessee Democrat John Shields—who resented Taft’s role in drafting the legislation in the first place—argued that the creation of at-large judges and the power to assign them to any district represented an infringement on the independence of district courts. Thaddeus Caraway of Arkansas objected to “giving to the Chief Justice the power to send out a horde of judges all over this country to designated places, concentrating in his power the whole judiciary system.” In the end, Taft got his Conference of Senior Circuit Judges but not the power to reassign what he called a “flying squadron” of judges.9
Taft chafed at Senate opposition, especially from those opponents who were members of his own party. He bemoaned that “being attacked by progressives” was “the penalty one has to pay for trying to reform matters.” Taft went so far as to lobby Republican Leader Henry Cabot Lodge to get senators more sympathetic to his proposals onto the Senate Judiciary Committee to counter Borah and Norris. He wrote to a fellow judge that the “yahoos of the West . . . were Republicans in getting on committees but not Republicans after they have succeeded.” Lodge, while sympathetic to the challenges posed by insurgents within the Republican ranks, politely rebuffed Taft.10
Senate progressives continued their efforts to curb the courts into the 1920s and even after Taft left the Court in 1930, winning victories with anti-injunction laws and defeating or delaying other elements of Taft’s plans. Norris was able to exert particular influence when he became chairman of the Judiciary Committee in 1926. Progressives also succeeded in defeating the nomination of Judge John J. Parker to the Supreme Court in 1930 after raising objections to his anti-labor rulings and to his opposition to African American voting rights. Such victories were short-lived, however, as the flurry of legislation passed during the Great Depression ensured that the battle between Congress and the courts would continue for years to come.
Notes
1. William G. Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (Princeton, NJ: Princeton University Press, 1994).
2. Paul Kens, The Lochner Era: Economic Regulation on Trial (Lawrence: University Press of Kansas, 1998).
3. Adkins v. Children’s Hospital, 261 U.S. 525 (1923).
4. William Forbath, Law and the Shaping of the American Labor Movement (Cambridge, MA: Harvard University Press, 1991).
5. Judicial Recall, Address by Senator Robert L. Owen, S. Doc. 62-249, 62nd Cong., 2nd sess., January 11, 1912; Congressional Record, 65th Cong., 2nd sess., June 6, 1918, 7432–33.
6. William E. Borah, “Five to Four Decisions as Menace to Respect for Supreme Court,” New York Times, February 18, 1923, 21; Report of the Proceedings of the 42nd Annual Convention of the American Federation of Labor (Washington, D.C.: Law Reporter, 1922), 234–43; Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922).
7. William Howard Taft, “The Selection and Tenure of Judges,” Report of the 36th Annual Meeting of the American Bar Association (1913), 420–26; Daniel S. Holt, ed., Debates on the Federal Judiciary: A Documentary History, Volume 2, 1875–1939 (Washington, D.C.: Federal Judicial Center, 2013), 180–96.
8. Congressional Record, 67th Cong., 2nd sess., April 6, 1922, 5107–14.
9. Congressional Record, 67th Cong., 2nd sess., March 31, 1922, 4848–49, 4855–65,; William Howard Taft, “Possible and Needed Reforms in Administration of Justice in Federal Courts,” American Bar Association Journal 8, no. 10 (October 1922): 601.
10. Taft to Hiscock, April 12, 1922, Taft to Lodge, January 17, 1922, Taft to Judge Baker, January 22, 1922, Taft to Robert Taft, April 5, 1924, Lodge to Taft, January 18, 1922, William Howard Taft Papers, Series 3: General Correspondence, 1877–1941, Manuscript Division, Library of Congress.
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