Replacing Justice O'Connor: What Would John Adams Do?

JURIST Guest Columnist Scott Gerber of Ohio Northern University Pettit College of Law says that the second President of the United States has some good advice on the upcoming Supreme Court nomination process necessitated by the retirement of Justice Sandra Day O'Connor...



The Left's call for President Bush to nominate a moderate replacement for retiring U.S. Supreme Court Justice Sandra Day O'Connor misses the mark. So, too, does the Right's demand for a conservative. The Founding Fathers wanted a federal judiciary independent of these sorts of political calculations. As they put it in The Federalist Papers, "The complete independence of the courts of justice is peculiarly essential in a limited Constitution."

Although John Adams was serving as the American ambassador to England during the time the Constitution was being written, perhaps no one played a more influential role in the creation of an independent judiciary in the United States than he did. Adams first wrote about the importance of judicial independence in 1773 in a series of letters published in the Boston press between himself and William Brattle.

Brattle, a Tory, argued that payment of judicial salaries by the Crown should not concern the people of Massachusetts Bay, given that the judges of the Superior Court enjoyed tenure during good behavior.

Adams, after conducting an extensive historical review of the subject, countered by stating that Brattle was wrong to suggest that judges in England, let alone in the colonies, held their offices during good behavior. As a result, the proposed control by the Crown over judicial salaries was perceived by many in the colony as a grave threat to the independence of the Massachusetts judiciary.

Adams revisited the matter of an independent judiciary in his celebrated 1776 pamphlet Thoughts on Government. The pamphlet--a clarion call for the separation of powers written in response to Thomas Paine's recommendation in Common Sense that all government power be vested in a unicameral legislature--was influential in a number of state constitutional conventions in addition to that of Massachusetts, including those in New Jersey, New York, North Carolina, and Virginia.

Adams maintained that the pamphlet was inspired by a number of the great liberal political theorists of his day, specifically by Harrington, Sydney, Hobbes, Nedham, and Locke (no mention was made of Montesquieu).

Adams explained in no uncertain terms in Thoughts on Government how important an independent judiciary was to any form of government dedicated to the preservation of liberty. He wrote: "The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that." He recommended that judges be "nominated and appointed by the governor, with the advice and consent of council."

Adams believed not merely in making the judiciary a separate branch of government, but also in judicial tenure during good behavior and stable compensation: "[T]hey should hold estates for life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law." Judges who misused their offices should be impeached by the "house of representatives . . . before the governor and council" and, "if convicted, should be removed."

A decade later, the Framers of the Federal Constitution incorporated Adams's recommendations into the nation's current organic law. Indeed, efforts to modify the essence of Adams's plan--the judiciary as a separate institution of government, life tenure for judges during good behavior, and secure compensation--were rejected on the grounds of judicial independence.

For example, John Dickinson attempted to include "address" as a means of removing federal judges. He moved to place after the good behavior clause language that federal judges "may be removed by the Executive on the application by the Senate and House of Representatives." The motion was resoundingly defeated. Gouverneur Morris called the proposal a "contradiction in terms," because it would have subjected judges otherwise serving during good behavior to removal without trial.

James Wilson complained that under Dickinson's proposal "Judges would be in a bad situation if made to depend on every gust of faction which might prevail in the two branches of our Govt." Edmund Randolph opposed it "as weakening too much the independence of Judges." In fact, the need for an independent judiciary was so widely accepted by the Framers of the Federal Constitution that even Dickinson insisted that "the Legislative, Executive & Judiciary departments ought to be made as independent as possible."

The recent Fourth of July celebrations reminded the nation how much the Founding Fathers could teach us about courage and the love of liberty. President Bush should heed the advice of one of the most influential Founders of all, John Adams, the second president of the United States, and appoint a replacement for Justice O'Connor who is "independent" in the best sense of that word. The Left and Right might not like it, but the nation would be better for it.


Scott D. Gerber is a law professor at Ohio Northern University. His legal thriller, The Law Clerk, will be published in October by Seven Locks Press.
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