Rejection of the First Recess Appointment

In 1795, even though the United States had been a nation for 12 years, we were on our second form of government. The first was a confederacy of 13 independent “nation states” that banded together to win the American Revolution governed by the Articles of Confederation.

In the eyes of the world, we were a political experiment.

Even back then, political pundits living in the kingdoms and duchies of Europe pontificated that one cannot be successful as a country without a king, queen, or duke, or duchess. Our Founding Fathers were determined to succeed. Within four years, even the most stalwart defender of the Articles of Confederation, would admit that confederation was not an effective form of government.

Something had to be done, so in a separate group, some members of the Confederation Congress (as the Continental Congress was now known) and others met in Philadelphia in what we call the Constitutional Convention. In just 114 days (May 25th to September 17th, 1787), they created an amazing document that we call the Constitution, which has become the longest-serving document of its kind in the world.

In Section II, Executive, Section 2, Clause 2, the U.S. Constitution gives the President the power to appoint ambassadors, public ministers, judges of the Supreme Court members, and others not otherwise provided for in the Constitution with the advice and consent of the Senate of which two-thirds must vote their approval.

In Clause 3 of the same section, the Constitution gives the President the power to appoint those allowed in Clause 2 without Senate approval if it is not in session. These are recess appointments, and the appointed individual must be approved by the Senate when it convenes.

The first test of these two clauses came after June 1795 when John Jay, the U.S.’s first Chief Justice of the Supreme Court, informed President George Washington that he was resigning. Since the Senate was not in session, Washington contacted John Rutledge of South Carolina to fill Jay’s position.

Rutledge was eminently qualified to be a member of the Supreme Court. During the Revolutionary War, he replaced the Royal Governor of South Carolina when Lord William Campbell fled in September 1775. That same year, he helped draft the South Carolina Constitution and then later played a major role in drafting the U.S. Constitution. Rutledge readily agreed to rejoin the Supreme Court as its Chief Justice. Hearing of Jay’s resignation, Rutledge contacted Washington, who readily agreed to offer a recess appointment as the Chief Justice starting with the court’s August 1795 session.

In 1790, He was the first Associate Justice appointed to the Supreme Court approved by the Senate. However, Rutledge resigned in 1791 to become the Chief Justice of the South Carolina Supreme Court.

In July, before he was sworn in on August 12th, 1795, as the new Chief Justice, Rutledge delivered a scathing speech in a public forum attacking the newly approved Jay Treaty with Great Britain arguing that the treaty was pro-British. Both Washington and Jay had pushed hard for the Jay Treaty which had been approved by the Senate by a slim margin.

Immediately, proponents of the treaty attacked Rutledge, suggesting that Rutledge did not have the mental capacity to sit on the Supreme Court. Rutledge ignored the criticism and took his seat after being sworn in.

On December 15th, 1795, opponents of Rutledge took the floor of the Senate and won a vote to not confirm Rutledge, as per Section II, Executive, Section 2, Clause 3. In their next vote, the Senate confirmed Oliver Ellsworth as the Third Chief Justice of the Supreme Court, forcing Rutledge to step down.

While not well known, this episode was another test of the Constitution’s viability as a country’s governing document. Like many others since then, the Rutledge recess appointment and required confirmation provide the brilliance of the concepts in the U.S. Constitution.

While he was helping craft the Constitution, little did John Rutledge know that the document he helped create would end his tenure as the nation’s senior justice. Rutledge’s term as Chief Justice of four months, 3 days, and his term of 12 months and 18 days as an Associate Justice are the shortest in the court’s history.

Image is a photo of the bust of John Rutledge in the U.S. Supreme Court Building in Washington, D.C.

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