This Day In Supreme Court History—December 8, 1902

On this day in 1902, Justice Oliver Wendell Holmes Jr. was sworn in as an Associate Justice of the U.S. Supreme Court.

The seat Holmes would occupy for the next thirty years opened up when Justice Horace Gray informed Roosevelt on July 9, 1902, that he was retiring. Roosevelt immediately wrote his close friend Henry Cabot Lodge, Senator from Massachusetts, to discuss nominating Holmes, who was then the Chief Justice on the Massachusetts Supreme Judicial Court. Holmes,  wrote Roosevelt,  “has been the most gallant soldier, a most able and upright public servant, and in public and private life alike a citizen whom we like to think of as typical of the American character at its best.” Roosevelt also hinted that he favored Holmes because he believed he shared the President’s views on American imperial policy in Puerto Rico and the Philippines. “Judge Holmes’ mental attitude …  is such that should naturally expect him to be in favor of those principles in which I so earnestly believe,” Roosevelt explained to Lodge. “Judge Gray has been one of the most valuable members of the Court. I should hold myself as having been guilty of an irreparable wrong to the nation if I should put in his place any man who was not absolutely sane and sound on the great national policies for which we stand in public life.”

In accepting Gray’s resignation, Roosevelt saluted Gray (who, like Holmes, was a native of Massachusetts and had served on that state’s  Supreme Judicial Court prior to his appointment to the U.S. Supreme Court) for his years of service and asked him postpone his retirement until a successor has been appointed. He concluded the letter with a flattering postscript: “The sentence I am about to write I suppose must not be made public because it might mistakenly be held to imply that I had anticipated a change in the Chief Justiceship! If through any accident to my good friend, the Chief Justice, there had been such a vacancy, it had been my intention to appoint you to it.” (Roosevelt’s flattery was misguided in this case: Gray’s resignation was brought on by grave illness; he would die just two months later.)

Roosevelt then wrote to the other U.S. Senator from Massachusetts, George Frisbie Hoar, who was the chairman of the Bar Committee of the Senate (what we now call the Senate Judiciary Committee). The President informed Hoar of his intention to appoint Holmes, but he explained that he would not make the appointment official until speaking with Hoar. The Senator felt slighted. “If the matter be decided, I do not understand what you expect or desire to hear from me,” he wrote. “As a Massachusetts lawyer, as the Senior Senator from the New England Circuit, and as Chairman of the Bar Committee of the Senate, I naturally feel great interest in the appointment of a Judge of the Supreme Court of the United States from my own Circuit and my own state. There is no doubt of the absolute right of The President to make such appointment on such advice as he chooses to take, or without advice, if he prefer.”

Roosevelt then sought to clarify his intentions. “I wrote to you, of course, so that if there was any reason why Holmes should not be appointed in our judgement, you would tell me.” Roosevelt explained that his appointment of Holmes was motivated by his goals of locating a nominee with the requisite professional prestige and ensuing there remains a justice from Massachusetts on the bench. “Equally, of course, my statement that I would make the appointment did not mean that I would make it if I was shown that such reason existed. I did not phrase my letter as carefully as if it was an ordinary appointment, simply because Homes being chief justice in the State, and having the reputation he has, I suppose it was a rather formal matter. But if there is the slightest reason against his appointment I of course wish to know it. Ever since Judge Gray’s sickness I have been looking over the field as carefully as I could in Massachusetts, as I wish to fill the place from that state, if possible.”

On August 11, Roosevelt wrote Hoar once again regarding Holmes’ appointment. He was moving ahead on the matter, he explained. “It would now be an idle formality for me to consult the public at large about Holmes – whatever it might have been well to do at the beginning – and so I shall announce his appointment.”

On that same day, President Theodore Roosevelt gave Holmes a recess appointment to the Court. Holmes, however, chose not to begin serving on the Court until the Senate confirmed his appointment, which it did on December 2.

Six days later, on December 8, 1902, Oliver Wendell Holmes Jr. was sworn in.

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