What did Marbury do next?

[Paul Finkelman]

Janet's point is a good one; but of course based on what we know today;
not on what Congress knew then.  I am not sure if I agree with her;
however.  You have life tenure during good behavior ONLY if there is
something to have life tenure on.   If congress abolished ALL Courts of
Appeals today I wonder what the basis of paying judges would be?  Surley
Article III means life tenure only if there is a court to serve on. 
Otherwise it is a like the old rotton boroughs of England.  Imagine
other examples; you have a 7 year appointment to Fed. or the FCC and
Congress abolishes it; can you collect your salary for 6 years for doing
nothing?  

This is all of couse high theory with out much fear of it happening, so
our certainty about how it would play out today does not, I think
illuminate whether Stuart v. Laird was correct then, even if it would
not be so today

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> Janet Alexander <jca at stanford.edu> 03/11/07 4:26 PM >>>
Congress can eliminate judgeships, but it can't thereby eliminate the 
tenure and salary protections afforded Art III judges.  Tilghman would 
still have had tenure and salary protection, even if the 1802 Act took
away 
his caseload.  Obviously the political realities prevented a challenge,
for 
the reasons discussed by various posts.  In Paul's example, the federal 
judges from the former ND and SD would still be Art III judges, entitled
to 
all the perqs of the office to which they have been appointed,
confirmed, 
and sworn in (pace Ed Hartnett).  If Congress could just say "We no
longer 
have a federal district court for the Southern District of New York; all

cases formerly handled by that court will now go to the Eastern
District" 
and thereby fire all the Art III judges in the Southern District, Art
III 
protections wouldn't mean very much.

Recall that one reason territorial courts are not Art III courts is the 
question "what to do with all the Art III judges if the territory is 
admitted or lost"?

Nothing in the Constitution ties Art III status to the existence of the 
particular organizational chart of the federal courts that was in effect

when the judge was appointed.

         Janet Alexander

At 12:37 PM 3/11/2007 -0400, Paul Finkelman wrote:
>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
>exist?
>
>Paul Finkelman
>President William McKinley Distinguished Professor of Law
>      and Public Policy
>Albany Law School
>80 New Scotland Avenue
>Albany, New York   12208-3494
>
>518-445-3386
>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
>JA
>of 1801.  (I wouldn't say "replaced" because no one was then appointed
>circuit judge; instead, the Supreme Court Justices resumed riding
>circuit,
>holding the old and restored circuit courts with the local district
>judge.)  Does anyone doubt that he (and the other circuit judges who
>were
>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).
>Greene's
>commission had an obvious formal error, and that meant he was out of
>luck.
>
>As a political matter, life tenured  circuit judges were being tossed
>out
>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
>judges)
>would have remained in office?
>
>What judge do you have in mind to do the swearing in?  One of the
>removed
>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
>just
>ruled against giving Marbury any relief, who had cooperated with the
>removal of the circuit judges, with impeachment looming?  A district
>judge
>who had just seen the circuit judges removed, and (following the lead
of
>
>the Supreme Court Justices) had also cooperated in that removal by
>holding
>the old and restored circuit courts with a Justice? Maybe District
Judge
>
>Pickering, before he was convicted by the Senate and removed from
>office?
>
>
>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
>973-642-8842
>hartneed at shu.edu
>SSRN author page: http://ssrn.com/author=253335
>
>
>
>fishman at duq.edu
>03/11/2007 12:28 AM
>
>To
>"Edward A Hartnett" <hartneed at shu.edu>
>cc
>"guayiya" <guayiya at bellsouth.net>, conlawprof at lists.ucla.edu,
>kurt.lash at lls.edu, conlawprof-bounces at lists.ucla.edu
>Subject
>Re: What did Marbury do next?
>
>
>
>
>
>Ed:
>
>But Tilghman was replaced because of the Judiciary Act of 1802 that
took
>away his and other federal judicial appointments at the time.
>
>Joel
>
>
> > I think it highly unlikely -- even today -- that you could find a
>judge
>to
> > swear in someone who lacked a commission.  How many of you would buy
>or
> > 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
>consider
> > the situation of Senator Ray Greene.  He had been nominated and
>confirmed
> > by the Senate as district judge for Rhode Island (and resigned from
>the
> > Senate), but the commission he received from Adams erroneously
>purported
> > to appoint him as a circuit judge.  Jefferson refused to give Greene
a
> > corrected commission, and instead filled the position to which
Greene
>had
> > 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
>could
> > Marbury possibily have been sworn in without any commission at all?
> >
> > At the same time, there were supposedly life tenured judges who had
>not
> > only been confirmed and commissioned, but actually deciding cases
for
>a
> > year before being tossed out, such as William Tilghman, chief judge
of
>
>the
> > 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
>as
> > Greene --  why would anyone think that some judge would swear in
>Marbury
> > 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
> > 973-642-8842
> > hartneed at shu.edu
> > SSRN author page:
> >
>http://ssrn.com/author=253335_______________________________________________
>
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>
>
>--
>Joel
>____________________________________
>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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Janet Cooper Alexander
Frederick I. Richman Professor of Law
Stanford Law School
Stanford CA 94301-8610
650.723.2892