What did Marbury do next?
pfink at albanylaw.edu
Sun Mar 11 09:37:23 PDT 2007
I am not sure why Ed thinks the 1801 judges had a stronger claim to
office, since their office no longer existed. Are you arguing that
Congress can NEVER abolish a court; change a court system. The Congress
did not remove the judges and then allow TJ to appoint new ones;
Consider the other piece of the 1801 act, which reduced the size of the
SC by one justice with the next vacancy; Congress could surely reverse
that, which it did. You could not argue that the next judge nominated
and confirmed could not take his seat because the old 1801 act trumped
the new 1802 act.
Try this one; suppose North and South Dakota decide that it is just
stupdid to have two states with almost no one living in them and that
they should simply become the state of Dakota. Congress approves this
merger becuase it will save the country lots of money and lead to
greater efficiencies. In approving the merger Congress also eliminates
many federal jobs and offices including all of the District Courts that
existed in both states and creates two new Federal District Courts --
one for the Eastern District of Dakota and one for the Western District
of Dakota, both cutting across the lines of what had been the two
states. The old federal courts no longer exist and that the judges who
formally worked in those jobs are no longer Federal Judges. Instead,
there is a entirely new Court created, for the District of Dakota. Can
these judges still claim to have jobs if their districts no longer
President William McKinley Distinguished Professor of Law
and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York 12208-3494
pfink at albanylaw.edu
>>> Edward A Hartnett <hartneed at shu.edu> 03/11/07 9:20 AM >>>
I understand that Tilghman lost his office because of the repeal of the
of 1801. (I wouldn't say "replaced" because no one was then appointed
circuit judge; instead, the Supreme Court Justices resumed riding
holding the old and restored circuit courts with the local district
judge.) Does anyone doubt that he (and the other circuit judges who
removed) had a stronger claim to office than Marbury?
My point is both formal and political.
As a formal matter, commissions mattered (and I think still do).
commission had an obvious formal error, and that meant he was out of
As a political matter, life tenured circuit judges were being tossed
of office, Supreme Court Justices actively went along with that removal
(by holding the old and restored circuit courts), and, by the way, a
Supreme Court Justice was about to be impeached.
In that environment, I think it is completely implausible that Marbury,
armed with nothing but dicta rendered in a case that he lost , could
convince any judge to swear him into office.
Why does anyone think that it is more likely that some judge would have
sworn Marbury into office (if only he had asked) than that Greene would
have been sworn in or that Tilghman (and the other removed circuit
would have remained in office?
What judge do you have in mind to do the swearing in? One of the
circuit judges? One of the DC Circuit Judges, who could be as easily
removed as the other circuit judges? A Supreme Court Justice who had
ruled against giving Marbury any relief, who had cooperated with the
removal of the circuit judges, with impeachment looming? A district
who had just seen the circuit judges removed, and (following the lead of
the Supreme Court Justices) had also cooperated in that removal by
the old and restored circuit courts with a Justice? Maybe District Judge
Pickering, before he was convicted by the Senate and removed from
Edward A. Hartnett
Richard J. Hughes Professor
for Constitutional and Public Law and Service
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102-5210
hartneed at shu.edu
SSRN author page: http://ssrn.com/author=253335
fishman at duq.edu
03/11/2007 12:28 AM
"Edward A Hartnett" <hartneed at shu.edu>
"guayiya" <guayiya at bellsouth.net>, conlawprof at lists.ucla.edu,
kurt.lash at lls.edu, conlawprof-bounces at lists.ucla.edu
Re: What did Marbury do next?
But Tilghman was replaced because of the Judiciary Act of 1802 that took
away his and other federal judicial appointments at the time.
> I think it highly unlikely -- even today -- that you could find a
> swear in someone who lacked a commission. How many of you would buy
> sell a house (or represent a buyer or seller at a closing) without the
> seller producing a deed?
> Anyone who thinks that Marbury could have been sworn in should
> the situation of Senator Ray Greene. He had been nominated and
> by the Senate as district judge for Rhode Island (and resigned from
> Senate), but the commission he received from Adams erroneously
> to appoint him as a circuit judge. Jefferson refused to give Greene a
> corrected commission, and instead filled the position to which Greene
> been confirmed by giving a recess appointment to David Barnes.
> If Greene could not be sworn in because of a obvious error in his
> commission, and thereby saw his position filled by someone else, how
> Marbury possibily have been sworn in without any commission at all?
> At the same time, there were supposedly life tenured judges who had
> only been confirmed and commissioned, but actually deciding cases for
> year before being tossed out, such as William Tilghman, chief judge of
> United States Circuit Court for the Third Circuit. See, e.g.,
> Hollingsworth v. Duane, 12 F. Cas 367 (C.C. Pa. 1801).
> If the Supreme Court cooperated in the displacement of already-sitting
> judges such as Tilghman -- and the displacement of almost-judges such
> Greene -- why would anyone think that some judge would swear in
> who had no commission and lost his case in the Supreme Court?
> Edward A. Hartnett
> Richard J. Hughes Professor
> for Constitutional and Public Law and Service
> Seton Hall University School of Law
> One Newark Center
> Newark, NJ 07102-5210
> hartneed at shu.edu
> SSRN author page:
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Joel Fishman, Ph.D.
Asst. Director for Lawyer Services
Duquesne University Center for Legal Information/
Allegheny County Law Library
921 City-County Bldg.
414 Grant St.
Pittsburgh, PA 15219
412.350.5727; fax: 412.350.5889
email: fishman at duq.edu
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