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When President George W. Bush and members of the Senate Judiciary Committee describe John Roberts Jr. as the nominee to be the 17th chief justice of the United States, Ross Davies just chuckles. That isn’t a comment on Roberts or his qualifications. What amuses Davies, a law professor at George Mason University, is the number everyone uses. Davies is quite sure that Roberts, if confirmed, will be the 18th chief justice, not the 17th. In a 76-page law review article, set to be published next spring, Davies makes a forceful argument that William Cushing, a mostly forgotten associate justice appointed by President George Washington, in fact served as chief justice for two days in February 1796 before resigning and returning to the associate justice seat he had held since 1790. The article has been posted on the University of Toledo Law Review Web site. Davies knows his discovery is not earth-shifting, but thinks Cushing, a devoted justice and supporter of Washington, deserves his due. “It wasn’t very glamorous, not much happened; but he did it,” says Davies, who has been researching Cushing’s tenure on and off for five years. Davies is editor in chief of the irreverent law review Green Bag, but on the subject of Cushing he is serious. Cushing, who had been chief justice of the Massachusetts Supreme Judicial Court, was Washington’s first appointee as an associate justice when the Court set up shop in 1789. Partly because of onerous circuit-riding duties and the dearth of cases in the Court’s early days, turnover on the Court was high. But Cushing was a stalwart in the Court’s early days, in spite of illness and advancing age. He was the only one of the original justices still on the Court when the great Chief Justice John Marshall arrived, in 1801. John Jay, the first chief justice, lost interest in the job and moonlighted as a special envoy to Great Britain. He resigned the chief justiceship in 1795 to become governor of New York. Washington immediately gave a recess appointment to John Rutledge of South Carolina. But after Rutledge presided over the Court for four months, the Senate rejected his nomination, apparently prompting him to attempt suicide by jumping off a bridge into Charleston Bay. In any event, Washington next turned to Cushing, sending his nomination to the Senate on Jan. 26, 1796. The Senate confirmed him unanimously the next day without hearings, and Washington signed the commission. It all happened without Cushing’s knowledge, apparently, because he only learned of the appointment when Washington introduced him at a diplomatic dinner as chief justice. “How could Cushing decline?” Davies asks. “How could he humiliate his president?” Davies insists that this sequence of events alone fits all the requirements that entitle Cushing to be called chief justice: He was nominated by the president, confirmed by the Senate, then appointed and commissioned by Washington. What happened next, however, is disputed — which is why most history books do not list Cushing as a chief justice. The rough minutes of the Supreme Court’s Feb. 3-4 sittings list Cushing as chief justice, though those two words were crossed out at a later date, according to Davies. Cushing was having serious cold feet about serving as chief, partly because of the earlier turmoil. “He had cancer and thought he was going to die. He didn’t want to be in the middle of a firestorm,” Davies says. Cushing soon sent a letter to Washington, in which he returned the commission, citing his “infirm & declining state of health.” By Feb. 5, the minutes of Court proceedings lumped Cushing in with the “associate judges.” He continued serving as associate justice until he died in 1810, at age 78. Conventional wisdom among Court historians has it that, by returning his commission, Cushing in effect declined the position of chief justice and never really held it. “After holding the commission for a week, Cushing declined because of ill health,” the Oxford Companion to the Supreme Court states. Wrong, says Davies, and perhaps his strongest evidence is that when Washington appointed Oliver Ellsworth as the next chief justice, his message to the Senate said that Ellsworth would replace “William Cushing, resigned.” Senate records also use the word “resigned.” Cushing could not have resigned a position he never held, Davies reasons. And if Cushing had turned down the position without ever holding it, Washington’s message to the Senate would have said “William Cushing, declined” — a formulation often used at the time. Davies reports that in 1857, senators from Cushing’s home state of Massachusetts unsuccessfully tried to resurrect Cushing’s status as chief justice, introducing a bill to commission a marble bust of Cushing as chief justice. The effort mimicked an earlier, more successful effort on behalf of Rutledge, whose recess appointment as chief justice had also been largely ignored by historians. Rutledge is now counted among chief justices, but not Cushing. Davies hopes his article will be more successful in elevating Cushing in the annals of Court history. He says his research was made possible by documents unearthed and collected in the long-running Supreme Court documentary history project run by historian Maeva Marcus. She declined to comment on Davies’ research, but none of her project’s publications makes the same claim about Cushing that Davies does. At least one other historian believes Davies made his case. “I thought it was fascinating and completely persuasive,” says Vanderbilt University Law School professor Suzanna Sherry. “The fact that Cushing’s chief justiceship isn’t part of the official history just goes to show that trying to uncover the historical meaning of 200-year-old events is not easy or certain.”
Tony Mauro can be contacted at [email protected].

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