The Politics of Justice: Lower Federal Judiciary Selection and the Second Party System, 1829-1861 (review)

BOOK REVIEWS The Politics of Justice: Lower Federal Judiciary Selection and the Second Party System, 1829-1861. By Kermit L. Hall. (Lincoln: The University of Nebraska Press, 1979. Pp. xvii, 268. $19.50.) Kermit Hall is to be commended for challenging the view of the "new" political history that theSecond American Party System was a "modern" political structure, characterized by a "formal, impersonal, automatic, and bureaucratic" decision-making process and staffed by public officers "selected on the basis of special training and experience" (p. xv). He finds evidence for a continuation of the older deference politics of the Federalists and Jeffersonians, not in legislative roll-call analysis or mass voting behavior (where its existence would be difficult to establish) but in the patronage process used to select federal judges in the states and territories. The author is at his best in tracing, on an administration-byadministration basis from Jackson to Buchanan, the circumstances surrounding representative judicial appointments. He is especially anxious to establish that those successful in securing patronage appointments ("principal mediators") had kinship or friendship ties to appointees . Short space cannot do justice to his characterization of the appointment policies of each president, but students of any chief executive from Old Hickory to Old Buck will read with benefit the chapter devoted to their particular interest. In the process, the author also demolishes old myths (e.g., when "senatorial courtesy" respecting appointments was established) and establishes some new verities (e.g., the application of the four-year rule to the territorial judiciary). In a second line of inquiry utilizing such sociological concepts as social origin and social-class position, the author presents a collective biography of the Jacksonian-era federal judiciary. Not surprisingly he finds more continuity than contrasts in the pre- and post-1829 justices. Like their pre-Jacksonian predecessors, most Jacksonian judges had prominent or elite social-class origins and maintained that social-class position. Jacksonian judges inherited wealth, were far better educated than the population as a whole, and did not democratize or equalize governmental administration. Some differentiation between stateside district court personnel and the territorial benches is found within the Jacksonian period. Territorial nominees were younger, of more modest 72CIVIL WAR HISTORY social-class origins, likelier to have experienced a status decline by the time of appointment, and had less previous judicial experience than their district court counterparts. But all Jacksonian judicial appointees undertook significant partisan political activity prior to their elevation to the bench, the territorial nominees to such an extent as to interfere with their legal career, in Professor Hall's opinion. It is this infusion of partisanship, the author feels, which is the most significant modernizing impact of the Second Party System on an otherwise remarkably traditional judicial selection process. Three reservations about Professor Hall's work must be expressed. Kinship/friendship relations between principal mediators and appointees is the author's primary criteria of traditionalism. The existence of these relations is easier to establish than is their importance in determining appointments or, as the author seems to assume, that the relation was always positive. One is reminded of James Buchanan's reply to Stephen A. Douglas's protest against thepresident's nomination of the senator's father-in-law to an influential Washington position: "Should I make the appointment which is not improbableit will be . . . from my regard for Mr. Cutts and his family, & not because Senator Douglas has had the good fortune to become his son-in-law." Nor is acceptance of the author's interpretation of the influence of principal mediators strengthened by serious discrepancies between his narrative chapters and the tabular data on which his analysis rests. The book's major appendix is a list of "Kinship Relations Between Lower Federal Court Nominees and Principal Mediators of the Selection Process" (pp. 181-90). In this appendix, Millard Fillmore is credited with appointing a judge for both Kansas and Nebraska territories, although neither territory was organized until fifteen months after Fillmore left office. Nor were these two appointees correctly attributed to Franklin Pierce's administration in a summary table (p. 188), thus rendering its percentages incorrect. The tabular relationships do not always agree with that given earlier in the biographical...