The creation of the department of justice: Professionalization without civil rights or civil service

Stanford Law Review

Volumn 66, Issue 1, 2014, Pages 121-172

  Shugerman, Jed Handelsman ^a  

^a FORDHAM UNIVERSITY   (United States)

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EID: 84893383508     PISSN: 00389765     EISSN: None     Source Type: Journal    
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References (411)

1. Sewall Key, The Legal Work of the Federal Government, 25 Va. L. Rev. 165, 179-85 (1938). See generally Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
2. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
3. James S. Easby-Smith, The Department of Justice: Its History and Functions (1904);
4. Albert Langeluttig, The Department of Justice of the United States (1927).
5. For other histories suggesting that the DOJ was created to manage a growing postwar docket and to improve law enforcement, see Steven G. Calabresi &Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush 193 (2008)
6. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
7. William E. Nelson, The Roots of American Bureaucracy, 1830-1900, at 5, 7 (1982).
8. Williamjames Hull Hoffer, To Enlarge the Machinery of Government: Congressional Debates and the Growth of the American State, 1858-1891 (2007).
9. Norman W. Spaulding, Independence and Experimentalism in the Department of Justice, 63 Stan. L. Rev. 409, 438 (2011) [hereinafter Spaulding, Independence and Experimentalism];
10. Norman W. Spaulding, Professional Independence in the Office of the Attorney General, 60 Stan. L. Rev. 1931, 1937, 1959-60 (2008) [hereinafter Spaulding, Professional Independence]. Former Solicitor General Seth Waxman wrote a piece linking Congress's creation of the DOJ and the Solicitor General's office to the enforcement of the Reconstruction Amendments and claiming that "a 'civil rights champion'. is precisely what Congress and the President wanted. "
11. Seth P. Waxman, Twins at Birth: Civil Rights and the Role of the Solicitor General, 75 Ind. L.J. 1297, 1297, 1300-01 (2000) (footnote omitted).
12. Act to Establish the Department of Justice, ch. 150, 16 Stat. 162 (1870).
13. Cong. Globe, 41st Cong., 2d Sess. 3035-36 (1870) (a total of $733,209 paid from 1864 through 1869, plus between $100,000 and $200,000 in outstanding claims).
14. Act to Establish the Department of Justice, ch. 150, 16 Stat. 162, 162-65 (1870).
15. William E. Nelson, The Roots of American Bureaucracy, 1830-1900, at 5, 7 (1982).
16. Robert W. Gordon, Legal Thought and Legal Practice in the Age of American Enterprise, 1870-1920, in Professions and Professional Ideologies in America 70, 70-71 (Gerald L. Geison ed., 1983);
17. Robert W. Gordon, The American Legal Profession, 1870-2000, in 3 The Cambridge History of Law in America 73, 73 (Michael Grossberg & Christopher Tomlins eds., 2008);
18. Robert W. Gordon, "The Ideal and the Actual in the Law": Fantasies and Practices of New York City Lawyers, 1870-1910, in The New High Priests: Lawyers in Post-Civil War America 51, 55-57 (Gerard W. Gawalt ed., 1984);
19. Wayne K. Hobson, Symbol of the New Profession: Emergence of the Large Law Firm, 1870-1915, in The New High Priests: Lawyers in Post-Civil WAR America, at 3, 3;
20. John A. Matzko, "The Best Men of the Bar": The Founding of the American Bar Association, in The New High Priests: Lawyers in Post-Civil WAR America, at 75, 75.
21. Carl Russell Fish, The Civil Service and the Patronage (1963);
22. Carl Russell Fish, The Civil Service and the Patronage (1963);
23. William Dudley Foulke, Fighting the Spoilsmen: Reminiscences of the Civil Service Reform Movement 3-6 (1919);
24. Jed Handelsman Shugerman, The People'S Courts: Pursuing Judicial Independence in America (2012);
25. Martin Tolchin, & Susan Tolchin, To the Victor: Political Patronage from the Clubhouse to the White House (1971);
26. Paul P. Van, Riper, History of the United States Civil Service (1958).
27. E.g., R.I. State Bureau of Info., The Book of Rhode Island 51 (1930);
28. Max J. Skidmore, Ideologies: Politics in Action 203 (1989).
29. George Martin, Causes and Conflicts: The Centennial History of The Association of the Bar of the City of New York, 1870-1970, at 35 (1970).
30. Cong. Globe, 41st Cong., 2d Sess. 3036 (1870) (statement of Rep. Thomas Jenckes).
31. Cong. Globe, 41st Cong., 2d Sess. 3036 (1870) (statement of Rep. William Lawrence).
32. Cong. Globe, 41st Cong., 2d Sess. 3036 (1870) (statement of Rep. Thomas Bayard).
33. Cong. Globe, 41st Cong., 2d Sess. 3036 (1870) (statement of Rep. Thomas Jenckes).
34. Cong. Globe, 41st Cong., 2d Sess. 3036 (1870) (statement of Rep. Thomas Jenckes).
35. Caleb Cushing, A Report of the Attorney General, Suggesting Modifications in the Manner of Conducting the Legal Business of the Government: Message from the President of the United States, H.R. Exec. Doc. No. 33-95, at 6 (1854). This discussion resonates with the contemporary debate over internal separation of powers within the executive branch.
36. Eric A. Posner, & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic 139-40 (2010);
37. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 Yale L.J. 2314 (2006).
38. Norman W. Spaulding, Professional Independence in the Office of the Attorney General, 60 Stan. L. Rev. 1931, 1937, 1959-60 (2008) [hereinafter Spaulding, Professional Independence]. Former Solicitor General Seth Waxman wrote a piece linking Congress's creation of the DOJ and the Solicitor General's office to the enforcement of the Reconstruction Amendments and claiming that "a 'civil rights champion'. is precisely what Congress and the President wanted. "
39. Daniel Carpenter's account of the rise of bureaucratic autonomy in the late nineteenth century in other departments emphasized the importance of bureaucrats maintaining "networks" with party politicians and ties with electoral coalitions. This study of the DOJ's creation shows an opposite strategy of removing government lawyers from party networks and insulating them from regular politics.
40. Daniel P. Carpenter, The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862-1928, at 29-30 (2001).
41. Cong. Globe, 41st Cong., 2d Sess. 3034-37 (1870).
42. Cong. Globe, 40th Cong., 2d Sess. 1272 (1868). The Civil Rights Act of 1866 and the Enforcement Act of 1870 permitted circuit judges to appoint more U.S. Commissioners, but these officers did not have close to the same powers over prosecution and litigation as the district attorneys or assistant district attorneys.
43. Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 Harv. L. Rev. 924, 987 & n.247 (2000) (describing the duties of U.S. Comissioners).
44. Williamjames Hull Hoffer, To Enlarge the Machinery of Government: Congressional Debates and the Growth of the American State, 1858-1891 (2007).
45. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
46. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
47. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
48. Kenneth A. Shepsle, Congress Is a "They, " Not an "It": Legislative Intent as Oxymoron, 12 Int'l Rev. L. & Econ. 239 (1992).
49. The Radical Republicans' ability to control Congress slipped due to many factors, but it should not be overlooked that Thaddeus Stevens, the de facto majority leader for the Radical Republicans, died in August 1868. The debates indicate that there was a lot of confusion and spotty attendance, so some Radical leaders might have overlooked the detailed effects of the DOJ Act, just as historians have. Some Radical Republicans might have assumed that the DOJ Act might produce more efficient enforcement, without realizing how deep the cuts were, or with an assumption that Congress would increase spending in the future. At best, the Radical Republicans in Congress in 1870 were naïve or overlooked these details. Alternatively, the votes for the Enforcement Acts and the DOJ Act reflect a consistent pattern in the 1870s: the Republican Congress enacted civil rights legislation on the books, but provided "inadequate financing, " was "reluctant" in its support of national civil rights, and was "penurious" with appropriations for courts and the federal judiciary.
50. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
51. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
52. For other histories suggesting that the DOJ was created to manage a growing postwar docket and to improve law enforcement, see Steven G. Calabresi &Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush 193 (2008)
53. Norman W. Spaulding, Professional Independence in the Office of the Attorney General, 60 Stan. L. Rev. 1931, 1937, 1959-60 (2008) [hereinafter Spaulding, Professional Independence]. Former Solicitor General Seth Waxman wrote a piece linking Congress's creation of the DOJ and the Solicitor General's office to the enforcement of the Reconstruction Amendments and claiming that "a 'civil rights champion'. is precisely what Congress and the President wanted. "
54. Norman W. Spaulding, Professional Independence in the Office of the Attorney General, 60 Stan. L. Rev. 1931, 1937, 1959-60 (2008) [hereinafter Spaulding, Professional Independence]. Former Solicitor General Seth Waxman wrote a piece linking Congress's creation of the DOJ and the Solicitor General's office to the enforcement of the Reconstruction Amendments and claiming that "a 'civil rights champion'. is precisely what Congress and the President wanted. "
55. One element of federal law enforcement centralization is the role of prosecutors. On the issue of prosecutorial independence, in Morrison v. Olson, the Supreme Court upheld the Independent Counsel Act, while Justice Scalia dissented, relying partly on historical interpretation to conclude: "Government investigation and prosecution of crimes is a quintessentially executive function. " 487 U.S. 654, 706 (1988) (Scalia, J., dissenting).
56. Norman W. Spaulding, Professional Independence in the Office of the Attorney General, 60 Stan. L. Rev. 1931, 1937, 1959-60 (2008) [hereinafter Spaulding, Professional Independence]. Former Solicitor General Seth Waxman wrote a piece linking Congress's creation of the DOJ and the Solicitor General's office to the enforcement of the Reconstruction Amendments and claiming that "a 'civil rights champion'. is precisely what Congress and the President wanted. "
57. Harold J. Krent, Executive Control over Criminal Law Enforcement: Some Lessons from History, 38 Am. U. L. Rev. 275, 281 (1989) (noting the decentralized system of district attorneys and the role of private citizens and state officials prosecuting crimes);
58. Lawrence Lessig, & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 8 (1994)
59. Stephanie A.J. Dangel, Note, Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers' Intent, 99 Yale L.J. 1069, 1077 (1990)
60. Gerhard Casper, An Essay in Separation of Powers: Some Early Versions and Practices, 30 Wm. & Mary L. Rev. 211 (1989);
61. William B. Gwyn, The Indeterminacy of the Separation of Powers and the Federal Courts, 57 Geo. Wash. L. Rev. 474, 476 (1989);
62. Ross E. Wiener, Inter-Branch Appointments After the Independent Counsel: Court Appointment of United States Attorneys, 86 Minn. L. Rev. 363 (2001) (noting that district courts are currently empowered by statute to appoint interim U.S. Attorneys, and tracing the history of independent government lawyers).
63. Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (2012).
64. Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (2012).
65. Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (2012).
66. Marvin E. Frankel & Gary P. Naftalis, The Grand Jury: An INSTITUTION on Trial 12-13 (1977).
67. Letter from Alexander Hamilton to George Washington (Nov. 19, 1794), in Alexander Hamilton and the Founding of the Nation 491 (Richard B. Morris ed., 1957).
68. Judiciary Act of 1789, ch. 20, § 35, 1 Stat. 73, 92-93.
69. Morrison v. Olson, 487 U.S. 654, 706 (1988) (Scalia, J., dissenting).
70. Allen Steinberg, The Transformation of Criminal Justice: Philadelphia, 1800-1880 (1989);
71. Robert M. Ireland, Privately Funded Prosecution of Crime in the Nineteenth-Century United States, 39 Am. J. Legal Hist. 43, 43 (1995).
72. Michael T. McCormack, Note, The Need for Private Prosecutors: An Analysis of Massachusetts and New Hampshire Law, 37 Suffolk U. L. Rev. 497, 501-02 (2004);
73. Allen Steinberg, "The Spirit of Litigation": Private Prosecution and Criminal Justice in Nineteenth Century Philadelphia, 20 J. Soc. Hist. 231, 235 (1986). It is not clear, however, that "public prosecution" carried the same meaning it does today. Carolyn Ramsey, for instance, suggests that public prosecutions might not have been publicly funded: "Before mid-[nineteenth] century, activities like searching for evidence, drafting legal documents, and empaneling a jury corresponded to a fee schedule; the complaining witness paid the District Attorney for services rendered. "
74. Carolyn B. Ramsey, The Discretionary Power of "Public" Prosecutors in Historical Perspective, 39 Am. Crim. L. Rev. 1309, 1326 (2002).
75. Joan E. Jacoby, The American Prosecutor: A Search for Identity 20 (1980).
76. Ga. Const. of 1798, art. III, § 3; Ga. Const. of 1789, art. III, § 5; Ill. Const. of 1848, art. V, § 21; Ind. Const. of 1851, art. VII, § 11; La. Const. of 1812, art. IV, § 7; Md. Const. of 1776, § XL (listing Attorney General's office in the same sentence as judges and chancellors); Tenn. Const. of 1834, art. VI, § 5; Va. Const. of 1830, art. V, § 8. But see Md. Const. of 1851, art. V (listing "State's attorney[s]" in a separate article).
77. Tenn. Const. of 1834, art. VI, § 5; Va. Const. of 1830, art. V, § 8.
78. Myers v. United States, 272 U.S. 52, 146 (1926).
79. Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 108-09 (1923).
80. Judiciary Act of 1789, ch. 20, § 27, 1 Stat. 73, 87
81. Harold J. Krent, Executive Control over Criminal Law Enforcement: Some Lessons from History, 38 Am. U. L. Rev. 275, 281 (1989) (noting the decentralized system of district attorneys and the role of private citizens and state officials prosecuting crimes);
82. Judiciary Act of 1789, ch. 20, § 27, 1 Stat. 73, 87.
83. Julius Goebel, Jr., Antecedents and Beginnings to 1801, in 1 History of the Supreme Court of The United States 1, 490 (Paul A. Freund ed., 1971).
84. Albert Langeluttig, The Department of Justice of the United States (1927).
85. Lawrence Lessig, & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 8 (1994)
86. Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 Duke L.J. 561, 581.
87. Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 Duke L.J. 561, 581.
88. Sewall Key, The Legal Work of the Federal Government, 25 Va. L. Rev. 165, 179-85 (1938). See generally Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
89. Albert Langeluttig, The Department of Justice of the United States (1927).
90. Act of Mar. 3, 1853, ch. 97, § 4, 10 Stat. 189, 212;
91. Nancy V. Baker, Conflicting Loyalties: Law and Politics in the Attorney General's Office, 1789-1990, at 56 (1992).
92. C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964, 993 (1978). Martin Redish also insists the First Amendment must cover the keeping of a diary.
93. C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964, 993 (1978). Martin Redish also insists the First Amendment must cover the keeping of a diary.
94. Annals of Cong. 289 (1791)
95. Leonard D. White, The Federalists: A Study in Administrative History 168 (1956).
96. Daniel J. Meador, The President, the Attorney General, AND The Department of Justice 6 (1980).
97. Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 Duke L.J. 561, 581.
98. Act of Mar. 3, 1797, ch. 20, §§ 1, 3, 1 Stat. 512, 512, 514-15.
99. Albert Langeluttig, The Department of Justice of the United States (1927).
100. Lawrence Lessig, & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 8 (1994)
101. Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940, at 263-64, 273 (2013).
102. Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940, at 263-64, 273 (2013).
103. Morrison v. Olson, 487 U.S. 654, 706 (1988) (Scalia, J., dissenting).
104. Act of May 15, 1820, ch. 107, 3 Stat. 592.
105. James S. Easby-Smith, The Department of Justice: Its History and Functions (1904);
106. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
107. Albert Langeluttig, The Department of Justice of the United States (1927).
108. Charles Tiefer, The Constitutionality of Independent Officers as Checks on Abuses of Executive Power, 63 B.U. L. Rev. 59, 75 (1983).
109. Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 Duke L.J. 561, 581.
110. Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940, at 263-64, 273 (2013).
111. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
112. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
113. Sudha Setty, No More Secret Laws: How Transparency of Executive Branch Legal Policy Doesn't Let the Terrorists Win, 57 U. Kan. L. Rev. 579, 585& n.32 (2009).
114. S. Doc. No. 21-1, at 28 (1830);
115. Andrew Jackson, Second Annual Message (Dec. 6, 1830), in 2 A Compilation of the Messages and Papers of the Presidents, 1789-1908, at 500, 527-28 (James D. Richardson ed., 1908).
116. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
117. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
118. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
119. Albert Langeluttig, The Department of Justice of the United States (1927).
120. Caleb Cushing, A Report of the Attorney General, Suggesting Modifications in the Manner of Conducting the Legal Business of the Government: Message from the President of the United States, H.R. Exec. Doc. No. 33-95, at 6 (1854). This discussion resonates with the contemporary debate over internal separation of powers within the executive branch.
121. Caleb Cushing, A Report of the Attorney General, Suggesting Modifications in the Manner of Conducting the Legal Business of the Government: Message from the President of the United States, H.R. Exec. Doc. No. 33-95, at 6 (1854). This discussion resonates with the contemporary debate over internal separation of powers within the executive branch.
122. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
123. Act of Aug. 2, 1861, ch. 37, 12 Stat. 285.
124. Act of Aug. 6, 1861, ch. 65, 12 Stat. 327.
125. Act of Aug. 2, 1861, ch. 37, §§ 2-3, 12 Stat. 285, 285-86.
126. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
127. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
128. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
129. George Martin, Causes and Conflicts: The Centennial History of The Association of the Bar of the City of New York, 1870-1970, at 35 (1970).
130. Edson R. Sunderland, History of The American Bar Association and ItsWork (1953).
131. Wayne K. Hobson, The American Legal Profession and the Organizational Society, 1890-1930, at 210-61 (May 1977) (unpublished Ph.D. dissertation, Stanford University) (on file with Crown Library, Stanford Law School).
132. Jed Handelsman Shugerman, The Twist of Long Terms: Judicial Elections, Role Fidelity, and American Tort Law, 98 Geo. L.J. 1349, 1383-84 (2010).
133. Kermit L. Hall, Constitutional Machinery and Judicial Professionalism: The Careers of Midwestern State Appellate Court Judges, 1861-1899, in The New High Priests: Lawyers in Post-CivilWar America, at 29, 42.
134. William E. Nelson, The Roots of American Bureaucracy, 1830-1900, at 5, 7 (1982).
135. G. Edward White, Tort LAW in America: An Intellectual History 26-27 (1980).
136. Wayne K. Hobson, The American Legal Profession and the Organizational Society, 1890-1930, at 210-61 (May 1977) (unpublished Ph.D. dissertation, Stanford University) (on file with Crown Library, Stanford Law School).
137. Maxwell Bloomfield, American Lawyers in a Changing Society, 1776-1876, at 142-43 (1976).
138. George Martin, Causes and Conflicts: The Centennial History of The Association of the Bar of the City of New York, 1870-1970, at 35 (1970).
139. Ari Hoogenboom, Outlawing the Spoils: A History of the Civil Service ReformMovement, 1865-1883, at 201 (1968).
140. Dorman B. Eaton, Civil Service in Great Britain: A History of Abuses AND Reforms and Their Bearing Upon American Politics (N.Y., Harper & Bros. 1880).
141. Dorman B. Eaton, Civil Service in Great Britain: A History of Abuses AND Reforms and Their Bearing Upon American Politics (N.Y., Harper & Bros. 1880).
142. George H. Drury, The Historical Guide to North American Railroads 129-30 (Bob Hayden ed., 1985);
143. Renée Lettow Lerner, From Popular Control to Independence: Reform of the Elected Judiciary in Boss Tweed's New York, 15 Geo. Mason L. Rev. 109, 116-18, 120, 145-46, 155 (2007).
144. Renée Lettow Lerner, From Popular Control to Independence: Reform of the Elected Judiciary in Boss Tweed's New York, 15 Geo. Mason L. Rev. 109, 116-18, 120, 145-46, 155 (2007).
145. Renée Lettow Lerner, From Popular Control to Independence: Reform of the Elected Judiciary in Boss Tweed's New York, 15 Geo. Mason L. Rev. 109, 116-18, 120, 145-46, 155 (2007).
146. Proceedings and Debates of the Constitutional Convention of the State of New York, Held in 1867 and 1868, in the City of Albany 2365 (Albany, Weed, Parsons & Co. 1868).
147. Renée Lettow Lerner, From Popular Control to Independence: Reform of the Elected Judiciary in Boss Tweed's New York, 15 Geo. Mason L. Rev. 109, 116-18, 120, 145-46, 155 (2007).
148. Renée Lettow Lerner, From Popular Control to Independence: Reform of the Elected Judiciary in Boss Tweed's New York, 15 Geo. Mason L. Rev. 109, 116-18, 120, 145-46, 155 (2007).
149. Jed Handelsman Shugerman, The Twist of Long Terms: Judicial Elections, Role Fidelity, and American Tort Law, 98 Geo. L.J. 1349, 1383-84 (2010).
150. Debates of the Convention to Amend the Constitution of Pennsylvania 486 (Harrisburg, Benjamin Singerly 1873).
151. Jed Handelsman Shugerman, The Twist of Long Terms: Judicial Elections, Role Fidelity, and American Tort Law, 98 Geo. L.J. 1349, 1383-84 (2010).
152. Mahlon H. Hellerich, The Origin of the Pennsylvania Constitutional Convention of 1873, 34 Pa. Hist. 158, 158, 166 (1967).
153. George Martin, Causes and Conflicts: The Centennial History of The Association of the Bar of the City of New York, 1870-1970, at 35 (1970).
154. George Martin, Causes and Conflicts: The Centennial History of The Association of the Bar of the City of New York, 1870-1970, at 35 (1970).
155. George Martin, Causes and Conflicts: The Centennial History of The Association of the Bar of the City of New York, 1870-1970, at 35 (1970).
156. George Martin, Causes and Conflicts: The Centennial History of The Association of the Bar of the City of New York, 1870-1970, at 35 (1970).
157. N.Y. Const. of 1846, art. VI, § 8.
158. Jed Handelsman Shugerman, The Rise of Judicial Elections and Judicial Review, 123 Harv. L. Rev. 1061, 1111-15 (2010).
159. George Martin, Causes and Conflicts: The Centennial History of The Association of the Bar of the City of New York, 1870-1970, at 35 (1970).
160. George Martin, Causes and Conflicts: The Centennial History of The Association of the Bar of the City of New York, 1870-1970, at 35 (1970).
161. George Martin, Causes and Conflicts: The Centennial History of The Association of the Bar of the City of New York, 1870-1970, at 35 (1970).
162. George Martin, Causes and Conflicts: The Centennial History of The Association of the Bar of the City of New York, 1870-1970, at 35 (1970).
163. George Martin, Causes and Conflicts: The Centennial History of The Association of the Bar of the City of New York, 1870-1970, at 35 (1970).
164. George Martin, Causes and Conflicts: The Centennial History of The Association of the Bar of the City of New York, 1870-1970, at 35 (1970).
165. J. Gordon Hylton, The Bar Association Movement in Nineteenth Century Wisconsin, 81 Marq. L. Rev. 1029, 1029-30 (1998).
166. Edson R. Sunderland, History of The American Bar Association and ItsWork (1953).
167. Roscoe Pound, The Lawyer from Antiquity to Modern Times: With Particular Reference to the Development of Bar Associations in the United States (1953).
168. Robert Kaczorowski found a relatively small amount of civil rights litigation by federal district attorneys before and after the DOJ's founding, although the litigation did increase in 1871, and these cases were high profile and work intensive.
169. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
170. Cong. Globe, 41st Cong., 2d Sess. 3035 (1870) (statement of Rep. Thomas Jenckes).
171. Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940, at 263-64, 273 (2013).
172. Act of Aug. 2, 1861, ch. 37, §§ 2-3, 12 Stat. 285, 285-86.
173. Act of Aug. 2, 1861, ch. 37, §§ 2-3, 12 Stat. 285, 285-86.
174. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
175. Cong. Globe, 39th Cong., 1st Sess. 2640 (1866) (statement of Sen. Lyman Trumbull).
176. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
177. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
178. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
179. Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920, at 47 (1982)
180. (citing Max Weber, Bureaucracy, in From Max Weber: Essays in Sociology 196, 196-244 (H.H. Gerth & C. Wright Mills eds. & trans., 1946).
181. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
182. Ari Hoogenboom, Thomas A. Jenckes and Civil Service Reform, 47 Miss. Valley Hist. Rev. 636, 636 (1961);
183. Sidney S. Rider, Providence J., Nov. 5, 1875, reprinted in in Memoriam: Thomas Allen Jenckes 3-4 (1876). Hoogenboom's article was extremely helpful for introducing me to Representative Jenckes and his papers. Hoogenboom focused on Representative Jenckes's civil service efforts, without identifying his work on the DOJ Act.
184. Sidney S. Rider, Providence J., Nov. 5, 1875, reprinted in in Memoriam: Thomas Allen Jenckes 3-4 (1876). Hoogenboom's article was extremely helpful for introducing me to Representative Jenckes and his papers. Hoogenboom focused on Representative Jenckes's civil service efforts, without identifying his work on the DOJ Act.
185. Earle Dudley Ross, The Liberal Republican Movement (1919).
186. Jean Edward Smith, Grant (2001).
187. John G. Sproat, "The BestMen": Liberal Reformers in the Gilded Age 11-44 (1968).
188. William E. Nelson, The Roots of American Bureaucracy, 1830-1900, at 5, 7 (1982).
189. William E. Nelson, The Roots of American Bureaucracy, 1830-1900, at 5, 7 (1982).
190. Earle Dudley Ross, The Liberal Republican Movement (1919).
191. John G. Sproat, "The BestMen": Liberal Reformers in the Gilded Age 11-44 (1968).
192. Paul P. Van, Riper, History of the United States Civil Service (1958).
193. Allan Peskin, Who Were the Stalwarts? Who Were Their Rivals? Republican Factions in the Gilded Age, 99 Pol. Sci. Q. 703 (1984).
194. Andrew L. Slap, The Doom of Reconstruction: The Liberal Republicans in the CivilWar Era (2006).
195. Cong. Globe, 40th Cong., 3d Sess. 728 (1869) (statement of Rep. Thomas Jenckes).
196. B.F. Thurston, Remarks at the Meeting of the Providence County Bar in Memory of Thomas A. Jenckes (Nov. 13, 1875), in In Memoriam: Thomas Allen Jenckes, at 33, 34.
197. James H. Parsons, Remarks at the Meeting of the Providence County Bar in Memory of Thomas A. Jenckes (Nov. 13, 1875), in In Memoriam: Thomas Allen Jenckes, at 27, 29.
198. Chief Justice Thomas Durfee, Remarks at the Meeting of the Providence Rhode Island Supreme Court in Memory of Thomas A. Jenckes (Nov. 20, 1875), in in Memoriam: Thomas Allen Jenckes, at 49, 49-51.
199. B.F. Thurston, Remarks at the Meeting of the Providence County Bar in Memory of Thomas A. Jenckes (Nov. 13, 1875), in In Memoriam: Thomas Allen Jenckes, at 33, 34.
200. Sidney S. Rider, Providence J., Nov. 5, 1875, reprinted in in Memoriam: Thomas Allen Jenckes 3-4 (1876). Hoogenboom's article was extremely helpful for introducing me to Representative Jenckes and his papers. Hoogenboom focused on Representative Jenckes's civil service efforts, without identifying his work on the DOJ Act.
201. Sidney S. Rider, Providence J., Nov. 5, 1875, reprinted in in Memoriam: Thomas Allen Jenckes 3-4 (1876). Hoogenboom's article was extremely helpful for introducing me to Representative Jenckes and his papers. Hoogenboom focused on Representative Jenckes's civil service efforts, without identifying his work on the DOJ Act.
202. Sidney S. Rider, Providence J., Nov. 5, 1875, reprinted in in Memoriam: Thomas Allen Jenckes 3-4 (1876). Hoogenboom's article was extremely helpful for introducing me to Representative Jenckes and his papers. Hoogenboom focused on Representative Jenckes's civil service efforts, without identifying his work on the DOJ Act.
203. B.F. Thurston, Remarks at the Meeting of the Providence County Bar in Memory of Thomas A. Jenckes (Nov. 13, 1875), in In Memoriam: Thomas Allen Jenckes, at 33, 34.
204. Chief Justice Thomas Durfee, Remarks at the Meeting of the Providence Rhode Island Supreme Court in Memory of Thomas A. Jenckes (Nov. 20, 1875), in in Memoriam: Thomas Allen Jenckes, at 49, 49-51.
205. Ari Hoogenboom, Thomas A. Jenckes and Civil Service Reform, 47 Miss. Valley Hist. Rev. 636, 636 (1961);
206. Cong. Globe, 39th Cong., 2d Sess. 837-41 (1867) (statement of Rep. Thomas Jenckes).
207. Leonard D. White, The Republican Era, 1869-1901, at 85-86 (1958).
208. The senators were George Edmunds (R-VT); George Williams (R-OR); James Patterson (R-NH); and Charles Rollin Buckalew (D-PA). The representatives were Charles Henry Van Wyck (R-NY); Samuel J. Randall (D-PA); Martin R. Welker (R-OH); George Armstrong Halsey (R-NJ); John Forbes Benjamin (R-MO); and Jacob Benton (R-NH). Official Congressional Directory, 40th Cong., 2d Sess. 44, 49 (1868). Senator Patterson apparently had no interests aside from budgetary issues (and apparently benefiting his own personal budget).
209. Leonard D. White, The Republican Era, 1869-1901, at 85-86 (1958).
210. John G. Sproat, "The BestMen": Liberal Reformers in the Gilded Age 11-44 (1968).
211. Richard E. Welch, Jr., George Edmunds of Vermont: Republican Half-Breed, 36 Vt. Hist. 64 (1968);
212. Selig Adler, The Senatorial Career of George Franklin Edmunds, 1866-1891 (1934) (unpublished Ph.D. dissertation abstract, University of Illinois) (on file with Perry-Castañeda Library, University of Texas at Austin). He later engineered the Compromise of 1877, which formally ended Reconstruction.
213. Norbert Kuntz, Edmunds' Contrivance: Senator George Edmunds of Vermont and the Electoral Compromise of 1877, 38 Vt. Hist. 305, 315 (1970). Senators Buckalew and Randall were conservative Democrats opposed to Reconstruction.
214. Albert Virgil House, Jr., The Political Career of Samuel Jackson Randall 9, 16-17 (Aug. 13, 1934) (unpublished Ph.D. dissertation, University of Wisconsin), available at http://digital.library.wisc.edu/1793/406;
215. William Willits Hummel, Charles R. Buckalew: Democratic Statesman in a Republican Era (1963) (unpublished Ph.D. dissertation, University of Pittsburgh) (on file with Wells Library, Indiana University). Senator Van Wyck's early political career was marked by enthusiasm for the Union cause and voluntary military service, but that did not always translate into enthusiasm for Reconstruction. He focused primarily on anticorruption and fiscal issues in Congress.
216. Marie U. Harmer & James L. Sellers, Charles H. Van Wyck-Soldier and Statesman II, 12 Neb. Hist. Mag. 190, 194, 203 (1929).
217. Only one, Senator George Williams had any significant record promoting Reconstruction in the 1860s, but his record on race was mixed at best. The leading historian on this episode concluded that Senator Williams was a partisan who was insincere about civil rights issues and used budgetary limits as an excuse to curtail the federal presence in the South.
218. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
219. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
220. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
221. William C. Harris, Andrew Johnson's First "Swing Around the Circle": His Northern Campaign of 1863, 35 CivilWar Hist. 153 (1989).
222. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
223. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
224. Act of Mar. 2, 1867, ch. 154, 14 Stat. 430.
225. Act of Mar. 2, 1867, ch. 154, 14 Stat. 430.
226. Myers v. United States, 272 U.S. 52, 112-15, 175-76 (1926).
227. Cong. Globe, 39th Cong., 2d Sess. 18 (1866).
228. Cong. Globe, 39th Cong., 2d Sess. 18 (1866).
229. H.R. 113, 40th Cong. § 2 (1867).
230. H.R. 889, 39th Cong. § 2 (1866).
231. H.R. 673, 39th Cong. § 2 (1866).
232. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
233. Ari Hoogenboom, Thomas A. Jenckes and Civil Service Reform, 47 Miss. Valley Hist. Rev. 636, 636 (1961);
234. Cong. Globe, 41st Cong., 1st Sess. 40 (1869).
235. Ari Hoogenboom, Thomas A. Jenckes and Civil Service Reform, 47 Miss. Valley Hist. Rev. 636, 636 (1961);
236. Cong. Globe, 42d Cong., 2d Sess. 3411 (1872). Other than this brief moment, almost nothing was said about civil service reform in the debates-at least in the House-with the exception of Representative Logan: [The Senate's amendment to the Tenure of Office Act] doubly gives them the power which they have wrenched from the coordinate branches of the Government in reference to patronage. I do not claim that this is a contest for patronage, but it is a struggle for power on the part of the Senate, and nothing else. Cong. Globe, 41st Cong., 1st Sess. 285 (1869) (statement of Rep. John Logan).
237. Cong. Globe, 42d Cong., 2d Sess. 3411 (1872).
238. Carl Russell Fish, The Civil Service and the Patronage (1963);
239. Ari Hoogenboom, Thomas A. Jenckes and Civil Service Reform, 47 Miss. Valley Hist. Rev. 636, 636 (1961);
240. Carl Russell Fish, The Civil Service and the Patronage (1963);
241. Ulysses S. Grant, First Annual Message (Dec. 6, 1869), in 9 A Compilation of The Messages and Papers of the Presidents, at 3981, 3992 (James D. Richardson ed., N.Y., Bureau of Nat'l Literature, Inc. 1897).
242. Cong. Globe, 40th Cong., 3d Sess. 1415 (1869) (statement of Sen. Roscoe Conkling).
243. Joseph L. Smith, Patterns and Consequences of Judicial Reversals: Theoretical Considerations and Data from a District Court, 27 Just. Sys. J. 28, 30 (2006) (describing reversal as "the only commonly used tool possessed by higher courts that imposes any costs on lower court judges").
244. Act of Apr. 5, 1869, ch. 10, §§ 1-2, 16 Stat. 6, 6-7.
245. A future article will show how the Tenure of Office Act caused a showdown between the Republican Senate and President Grover Cleveland, the first Democrat elected to the White House after the Civil War. Jed Handelsman Shugerman, The Unexpected Origins of the American Administrative State: The Interstate Commerce Commission, the Tenure of Office Act, and Increasing Political Accountability (unpublished manuscript) (on file with author). The Senate's power under the revised statute was significant at other moments, as well.
246. Albert Langeluttig, The Department of Justice of the United States (1927).
247. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
248. Norman W. Spaulding, Professional Independence in the Office of the Attorney General, 60 Stan. L. Rev. 1931, 1937, 1959-60 (2008) [hereinafter Spaulding, Professional Independence]. Former Solicitor General Seth Waxman wrote a piece linking Congress's creation of the DOJ and the Solicitor General's office to the enforcement of the Reconstruction Amendments and claiming that "a 'civil rights champion'. is precisely what Congress and the President wanted. "
249. Seth P. Waxman, Twins at Birth: Civil Rights and the Role of the Solicitor General, 75 Ind. L.J. 1297, 1297, 1300-01 (2000) (footnote omitted).
250. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
251. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
252. Norman W. Spaulding, Professional Independence in the Office of the Attorney General, 60 Stan. L. Rev. 1931, 1937, 1959-60 (2008) [hereinafter Spaulding, Professional Independence]. Former Solicitor General Seth Waxman wrote a piece linking Congress's creation of the DOJ and the Solicitor General's office to the enforcement of the Reconstruction Amendments and claiming that "a 'civil rights champion'. is precisely what Congress and the President wanted. "
253. Norman W. Spaulding, Professional Independence in the Office of the Attorney General, 60 Stan. L. Rev. 1931, 1937, 1959-60 (2008) [hereinafter Spaulding, Professional Independence]. Former Solicitor General Seth Waxman wrote a piece linking Congress's creation of the DOJ and the Solicitor General's office to the enforcement of the Reconstruction Amendments and claiming that "a 'civil rights champion'. is precisely what Congress and the President wanted. "
254. Norman W. Spaulding, Professional Independence in the Office of the Attorney General, 60 Stan. L. Rev. 1931, 1937, 1959-60 (2008) [hereinafter Spaulding, Professional Independence]. Former Solicitor General Seth Waxman wrote a piece linking Congress's creation of the DOJ and the Solicitor General's office to the enforcement of the Reconstruction Amendments and claiming that "a 'civil rights champion'. is precisely what Congress and the President wanted. "
255. Military Reconstruction was over by the end of 1870, but the military still had a role in the South.
256. Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877 (1988). The Attorney General would still play a role in these questions at the top of the legal hierarchy, but the DOJ itself would not. If the DOJ was supposed to administer Reconstruction, surely it would have been given some institutional control of military lawyers.
257. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
258. Earle Dudley Ross, The Liberal Republican Movement (1919).
259. John G. Sproat, "The BestMen": Liberal Reformers in the Gilded Age 11-44 (1968).
260. Norman W. Spaulding, Professional Independence in the Office of the Attorney General, 60 Stan. L. Rev. 1931, 1937, 1959-60 (2008) [hereinafter Spaulding, Professional Independence]. Former Solicitor General Seth Waxman wrote a piece linking Congress's creation of the DOJ and the Solicitor General's office to the enforcement of the Reconstruction Amendments and claiming that "a 'civil rights champion'. is precisely what Congress and the President wanted. "
261. Norman W. Spaulding, Professional Independence in the Office of the Attorney General, 60 Stan. L. Rev. 1931, 1937, 1959-60 (2008) [hereinafter Spaulding, Professional Independence]. Former Solicitor General Seth Waxman wrote a piece linking Congress's creation of the DOJ and the Solicitor General's office to the enforcement of the Reconstruction Amendments and claiming that "a 'civil rights champion'. is precisely what Congress and the President wanted. "
262. H.R. Rep. No. 40-47, 4-7 (1868).
263. Thomas H. Brown, George Sewall Boutwell: Human Rights Advocate (1989).
264. Henry Brooks Adams, Civil-Service Reform, 109 N. Am. Rev. 443, 454-55 (1869).
265. George S. Boutwell, Reminiscences of Sixty Years in Public Affairs 135-36 (1902).
266. Mr. Boutwell's Last Excuse, Nation, Dec. 15, 1870, at 397.
267. Mr. Boutwell and Mr. Wells, Nation, June 23, 1870, at 398 (internal quotation marks omitted).
268. The Treasury Report, Nation, Dec. 15, 1870, at 396.
269. Thomas H. Brown, George Sewall Boutwell: Human Rights Advocate (1989).
270. Henry Brooks Adams, Civil-Service Reform, 109 N. Am. Rev. 443, 454-55 (1869).
271. In his later writings, Secretary Boutwell hailed the professional values of lawyers as vital for the survival of the Republic. One indication of his view was his book The Lawyer, the Statesman, and the Soldier, in which he put the learned trial lawyer Rufus Choate on relatively equal footing with Daniel Webster, Abraham Lincoln, and Ulysses Grant, and extolled the virtues and duties of the legal profession. In fact, Secretary Boutwell approvingly cited at length Choate's defense of judicial independence at the 1853 Massachusetts Constitutional Convention, and he praised a government of impartial legal "principles" and "rule of the lawyer. of such as have legal perceptions and that training which enables them to apply legal principles in public affairs. " George S. Boutwell, The Lawyer, the Statesman, and the Soldier 17, 25 (N.Y., D. Appleton & Co. 1887).
272. Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 1003 (1995).
273. Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 1003 (1995).
274. H.R. 2995, 41st Cong. (1871).
275. H.R. 2892, 41st Cong. (1871).
276. H.R. 2132, 41st Cong. (1870).
277. H.R. 2131, 41st Cong. (1870).
278. H.R. 1566, 41st Cong. (1870).
279. H.R. 1346, 41st Cong. (1870).
280. H.R. 286, 41st Cong. (1869).
281. H.R. 239, 41st Cong. (1869).
282. Cong. Globe, 40th Cong., 2d Sess. 1271-73 (1868) (statement of Rep. William Lawrence).
283. Cong. Globe, 39th Cong., 2d Sess. 837-41 (1867) (statement of Rep. Thomas Jenckes).
284. H.R. 379, 41st Cong. (1869).
285. H.R. 371, 41st Cong. (1869).
286. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
287. Act to Establish the Department of Justice, ch. 150, §§ 1-3, 16 Stat. 162, 162 (1870).
288. Act to Establish the Department of Justice, ch. 150, §§ 1-3, 16 Stat. 162, 162 (1870).
289. Act to Establish the Department of Justice, ch. 150, §§ 1-3, 16 Stat. 162, 162 (1870).
290. Cong. Globe, 41st Cong., 2d Sess. 3809, 3884 (1870).
291. Cong. Globe, 41st Cong., 2d Sess. 3809, 3884 (1870).
292. Cong. Globe, 41st Cong., 2d Sess. 3809, 3884 (1870).
293. Cong. Globe, 41st Cong., 2d Sess. 3809, 3884 (1870).
294. Cong. Globe, 41st Cong., 2d Sess. 3809, 3884 (1870).
295. David Loth, Chief Justice John Marshall and the Growth of the American Republic 365 (1948).
296. Oliver P. Temple, Notable Men of Tennessee 137-49 (1912).
297. Cong. Globe, 41st Cong., 2d Sess. 3036 (1870).
298. Caleb Cushing, A Report of the Attorney General, Suggesting Modifications in the Manner of Conducting the Legal Business of the Government: Message from the President of the United States, H.R. Exec. Doc. No. 33-95, at 6 (1854). This discussion resonates with the contemporary debate over internal separation of powers within the executive branch.
299. Eric A. Posner, & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic 139-40 (2010);
300. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 Yale L.J. 2314 (2006).
301. Cong. Globe, 41st Cong., 2d Sess. 3036 (1870) (statement of Rep. Thomas Jenckes).
302. Cong. Globe, 41st Cong., 2d Sess. 3036 (1870) (statement of Rep. Thomas Jenckes).
303. Cong. Globe, 41st Cong., 2d Sess. 3036 (1870) (statement of Rep. Thomas Jenckes).
304. Cong. Globe, 41st Cong., 2d Sess. 3036 (1870) (statement of Rep. Thomas Jenckes).
305. Cong. Globe, 41st Cong., 2d Sess. 3036 (1870) (statement of Rep. Thomas Jenckes).
306. A Department of Justice, N.Y. Times, May 13, 1870, at 4.
307. General, Deseret News (Salt Lake City), May 11, 1870, at 2.
308. The Department of Justice, N.Y. Times, July 10, 1870, at 4.
309. Representative William Lawrence, a supporter of the DOJ Act, complained that the outside counsel system had allowed the federal government to pay $47,500 to William Evarts over eight years, but considering Evarts's workload over those eight years as war negotiator and President Johnson's defense counsel, that fee is more or less in line with what principal law officers made in salary per year.
310. Williamjames Hull Hoffer, To Enlarge the Machinery of Government: Congressional Debates and the Growth of the American State, 1858-1891 (2007).
311. Chester L. Barrows, William M. Evarts: Lawyer, Diplomat, Statesman 178-79 (1941);
312. Brainerd Dyer, The Public Career of William M. Evarts 101-12 (1933);
313. Mark Grossman, William Maxwell Evarts, 1818-1901, in 1 Encyclopedia of The United States Cabinet 77, 77 (2000);
314. William Henry Smith, History of the Cabinet of The United States of America 129 (1925).
315. George Martin, Causes and Conflicts: The Centennial History of The Association of the Bar of the City of New York, 1870-1970, at 35 (1970).
316. Edson R. Sunderland, History of The American Bar Association and ItsWork (1953).
317. Resolution, Meeting of the Bar of the Massachusetts Commonwealth in Memory of Ebenezer Rockwood Hoar (Mar. 9, 1895), in Tributes of the Bar and of the Supreme Judicial Court of the Commonwealth to the Memory of Ebenezer Rockwood Hoar 8 (Walbridge Abner Field ed., Cambridge, John Wilson & Son Univ. Press 1895).
318. Edson R. Sunderland, History of The American Bar Association and ItsWork (1953).
319. Edson R. Sunderland, History of The American Bar Association and ItsWork (1953).
320. Mark Grossman, William Maxwell Evarts, 1818-1901, in 1 Encyclopedia of The United States Cabinet 77, 77 (2000);
321. Henry J. Abraham, Justices and Presidents: A Political History of Appointments to The Supreme Court 127 (3d ed. 1992).
322. Charles Warren, The Supreme Court in United States History 223-24 (1923).
323. Henry Brooks Adams, Civil-Service Reform, 109 N. Am. Rev. 443, 454-55 (1869).
324. Henry Brooks Adams, Civil-Service Reform, 109 N. Am. Rev. 443, 454-55 (1869).
325. John G. Sproat, "The BestMen": Liberal Reformers in the Gilded Age 11-44 (1968).
326. Moorfield Storey & Edward W. Emerson, Ebenezer Rockwood Hoar: A Memoir 182-83 (1911).
327. Joseph L. Smith, Patterns and Consequences of Judicial Reversals: Theoretical Considerations and Data from a District Court, 27 Just. Sys. J. 28, 30 (2006) (describing reversal as "the only commonly used tool possessed by higher courts that imposes any costs on lower court judges").
328. Resolution, Meeting of the Bar of the Massachusetts Commonwealth in Memory of Ebenezer Rockwood Hoar (Mar. 9, 1895), in Tributes of the Bar and of the Supreme Judicial Court of the Commonwealth to the Memory of Ebenezer Rockwood Hoar 8 (Walbridge Abner Field ed., Cambridge, John Wilson & Son Univ. Press 1895).
329. Moorfield Storey & Edward W. Emerson, Ebenezer Rockwood Hoar: A Memoir 182-83 (1911).
330. It turns out that Ebenezer Hoar's brother George and William Evarts would defy partisanship later. In the Senate, they crossed partisan lines to support the repeal of the Tenure of Office Act in 1887.
331. Jed Handelsman Shugerman, The Twist of Long Terms: Judicial Elections, Role Fidelity, and American Tort Law, 98 Geo. L.J. 1349, 1383-84 (2010).
332. Cong. Globe, 41st Cong., 2d Sess. 3067 (1870).
333. Cong. Globe, 41st Cong., 2d Sess. 3067 (1870).
334. Cong. Globe, 41st Cong., 2d Sess. 3067 (1870).
335. Cong. Globe, 41st Cong., 2d Sess. 3067 (1870).
336. Act to Establish the Department of Justice, ch. 150, § 6, 16 Stat. 162, 163 (1870).
337. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
338. Cong. Globe, 41st Cong., 2d Sess. 3037 (1870) (statement of Rep. Thomas Jenckes).
339. Cong. Globe, 41st Cong., 2d Sess. 3037 (1870) (statement of Rep. Thomas Jenckes).
340. Cong. Globe, 41st Cong., 2d Sess. 3037 (1870) (statement of Rep. Thomas Jenckes).
341. Cong. Globe, 41st Cong., 2d Sess. 3037 (1870) (statement of Rep. Thomas Jenckes).
342. Cong. Globe, 41st Cong., 2d Sess. 3037 (1870) (statement of Rep. Thomas Jenckes).
343. Cong. Globe, 41st Cong., 2d Sess. 3037 (1870) (statement of Rep. Thomas Jenckes).
344. Cong. Globe, 41st Cong., 2d Sess. 3037 (1870) (statement of Rep. Thomas Jenckes).
345. Cong. Globe, 41st Cong., 2d Sess. 3037 (1870) (statement of Rep. Thomas Jenckes).
346. Cong. Globe, 41st Cong., 2d Sess. 3037 (1870) (statement of Rep. Thomas Jenckes).
347. Cong. Globe, 41st Cong., 2d Sess. 3037 (1870) (statement of Rep. Thomas Jenckes).
348. Cong. Globe, 41st Cong., 2d Sess. 3037 (1870) (statement of Rep. Thomas Jenckes).
349. Cong. Globe, 41st Cong., 2d Sess. 3037 (1870) (statement of Rep. Thomas Jenckes).
350. Enforcement Act of 1870, ch. 114, §§ 8, 13, 16 Stat. 140, 142, 143.
351. Eric Foner, Reconstruction: America's Unfinished Revolution 454, 457, 458 (1988).
352. Joseph L. Smith, Patterns and Consequences of Judicial Reversals: Theoretical Considerations and Data from a District Court, 27 Just. Sys. J. 28, 30 (2006) (describing reversal as "the only commonly used tool possessed by higher courts that imposes any costs on lower court judges").
353. Norman W. Spaulding, Professional Independence in the Office of the Attorney General, 60 Stan. L. Rev. 1931, 1937, 1959-60 (2008) [hereinafter Spaulding, Professional Independence]. Former Solicitor General Seth Waxman wrote a piece linking Congress's creation of the DOJ and the Solicitor General's office to the enforcement of the Reconstruction Amendments and claiming that "a 'civil rights champion'. is precisely what Congress and the President wanted. "
354. Charles Francis Adams, Remarks at the Meeting of the Massachusetts Historical Society in Memory of Ebenezer Rockwood Hoar (Feb. 14, 1895), in Tributes of the BAR AND of The Supreme Judicial Court of the Commonwealth to the Memory of Ebenezer Rockwood Hoar, at 60 (internal quotation marks omitted).
355. Mark Grossman, William Maxwell Evarts, 1818-1901, in 1 Encyclopedia of The United States Cabinet 77, 77 (2000);
356. Joseph P. Harris, The Advice and Consent of The Senate: A Study of the Confirmation of Appointments by the United States Senate 75 (1953);
357. Brooks D. Simpson, The Political Education of Henry Adams 61 (1996).
358. Moorfield Storey & Edward W. Emerson, Ebenezer Rockwood Hoar: A Memoir 182-83 (1911).
359. Jacob Dolson Cox, How Judge Hoar Ceased to be Attorney-General, AtlanticMonthly, Aug. 1895, at 162, 162.
360. Summary of Events, 4 Am. L. Rev. 380, 394-95 (1869).
361. Summary of Events, 4 Am. L. Rev. 380, 394-95 (1869).
362. Moorfield Storey & Edward W. Emerson, Ebenezer Rockwood Hoar: A Memoir 182-83 (1911).
363. Moorfield Storey & Edward W. Emerson, Ebenezer Rockwood Hoar: A Memoir 182-83 (1911).
364. Moorfield Storey & Edward W. Emerson, Ebenezer Rockwood Hoar: A Memoir 182-83 (1911).
365. Jacob Dolson Cox, How Judge Hoar Ceased to be Attorney-General, AtlanticMonthly, Aug. 1895, at 162, 162.
366. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
367. Jerome Loving, Walt Whitman: The Song of Himself 291, 336 (1999).
368. Philip Callow, Walt Whitman: From Noon to Starry Night 331 (1992).
369. Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
370. Hamilton Fish, Diary Entry (June 17, 1870), in 20 The Papers of Ulysses S. Grant 170, 171 (John Y. Simon ed., 1995).
371. Resignation of Attorney-General Hoar, N.Y. Trib., June 17, 1870, at 1.
372. Norman W. Spaulding, Professional Independence in the Office of the Attorney General, 60 Stan. L. Rev. 1931, 1937, 1959-60 (2008) [hereinafter Spaulding, Professional Independence]. Former Solicitor General Seth Waxman wrote a piece linking Congress's creation of the DOJ and the Solicitor General's office to the enforcement of the Reconstruction Amendments and claiming that "a 'civil rights champion'. is precisely what Congress and the President wanted. "
373. Cong. Globe, 41st Cong., 3d Sess. 66 (1870).
374. Cong. Globe, 41st Cong., 3d Sess. 66 (1870).
375. Act of Feb. 25, 1863, ch. 58, § 1, 12 Stat. 665, 665-66.
376. 272 U.S. 52, 107, 294-95 (1926). The statute protecting the Postmaster General and his assistants, which would later be struck down in Myers, was passed in 1872, after Representative Jenckes was out of Congress.
377. Act of June 8, 1872, ch. 335, § 2, 17 Stat. 283, 284.
378. H.R. 113, 40th Cong. § 2 (1867).
379. H.R. 889, 39th Cong. § 2 (1866).
380. H.R. 673, 39th Cong. § 2 (1866).
381. Luther A. Huston, The Department of Justice 54 (1967).
382. U.S. Department of Justice Building (Robert F. Kennedy Building), Washington DC, U.S. Gen. Servs. Admin., http://www.gsa.gov/portal/ext/html/site/hb/category/25431/actionParameter/exploreByBuildi ng/buildingId/321 (last visited Dec. 18, 2013).
383. Sewall Key, The Legal Work of the Federal Government, 25 Va. L. Rev. 165, 179-85 (1938). See generally Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive (1937).
384. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
385. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
386. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
387. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
388. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
389. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
390. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
391. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
392. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
393. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
394. Act to Establish the Department of Justice, ch. 150, 16 Stat. 162, 162-65 (1870).
395. Act to Establish the Department of Justice, ch. 150, 16 Stat. 162, 162-65 (1870).
396. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
397. Scott C. James & Brian L. Lawson, The Political Economy of Voting Rights Enforcement in America's Gilded Age: Electoral College Competition, Partisan Commitment, and the Federal Election Law, 93 Am. Pol. Sci. Rev. 115, 120, 124 (1999);
398. David Quigley, Constitutional Revision and the City: The Enforcement Acts and Urban America, 1870-1894, 20 J. Pol'y Hist. 64 (2008).
399. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
400. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
401. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
402. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
403. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876, at 39-40 (Fordham Univ. Press 2005) (1985). More generally, William Nelson has argued that the rise of American bureaucracy after the Civil War was a turn toward the protection of individual rights and minorities.
404. Carl Russell Fish, The Civil Service and the Patronage (1963);
405. Jed Handelsman Shugerman, The Twist of Long Terms: Judicial Elections, Role Fidelity, and American Tort Law, 98 Geo. L.J. 1349, 1383-84 (2010).
406. Leonard D. White et al., Civil Service Abroad: Great Britain, Canada, France, Germany 3, 61, 90, 204 (1935).
407. In Canada and England, the office of attorney general is a political position, but the parallel offices to the U.S. Attorneys (England's Crown Prosecution Service, Director of Public Prosecutions, and Chief Crown Prosecutors; and Canada's crown attorneys or crown counsel) are civil servants insulated from politics. In Continental Europe, prosecutors are quasi-judicial officers under the inquisitorial model, organized as a professional bureaucracy with high job security (sometimes with life tenure). Jed Handelsman Shugerman, The Founding of the DOJ and the Failure of Civil Service Reform, 1865-1870, at 2 & nn.3-4 (2012) (unpublished manuscript), available at http://www.law.uchicago.edu/files/files/ Shugerman%20DOJ%20and%20Civil%20Service%202%205.pdf.
408. George Williams was one example under President Grant, and President Harrison's Attorney General William Miller was also a partisan insider and campaign advisor. But this trend seems to have truly emerged in 1919 with A. Mitchell Palmer under President Wilson, followed by President Harding's campaign manager Harry Daugherty, President Franklin Roosevelt's Attorney General Homer Cummings, President Truman's campaign manager J. Howard McGrath, President Eisenhower's political advisor Herbert Brownell, and President Nixon's campaign manager John Mitchell.
409. Cornell W. Clayton, The Politics of Justice: The Attorney General and the Making of Legal Policy 51 (1992).
410. Act of Aug. 2, 186 1, ch. 37, § 2, 12 Stat. 285, 285.
411. Act to Establish the Department of Justice, ch. 150, 16 Stat. 162, 162-65 (1870).