How to Pick a Judge

George Washington
George Washington

One of the most important responsibilities of an American president is to nominate federal judges—particularly Supreme Court justices—who, in turn, must be confirmed by a simple majority vote in the Senate. Most presidents have nominated four or fewer Supreme Court justices. A few have named more—two presidents have each nominated five or six, while President Franklin D. Roosevelt nominated nine justices during his unprecedented four terms. But, in implementing the new Constitution, President George Washington nominated all six of the first Supreme Court justices and the federal district judges for every state. Over the course of his two terms, Washington nominated a total of twelve Supreme Court justices (including four chief justices)—one of those chief justice nominees refused to serve and another (made as a recess appointment) was not confirmed when the Senate came back into session.

Overall Washington found the presidential duty of making appointments “the most delicate” but also “the most unpleasing; for it may frequently happen that there will be several applicants for the same office, whose merits and pretensions are so nearly equal that it will almost require the aid of supernatural intuition to fix upon the right.” He felt consoled however knowing that he entered his “office unconfined by any engagements, and uninfluenced by any ties; and that no means in my power will be left untried to find out, and nominate those characters who will discharge the duties of their respective offices to the best interest and highest credit of the American Union.”

Washington considered the federal judiciary “as the Key-stone of our political fabric.” Thoroughly convinced that “the due administration of Justice is the corner stone of good government,” Washington arduously sought to make the best appointments possible by diligently consulting his closest advisors as well as politically respected friends in every state. Because he thought that government suffered embarrassment when nominees publicly rejected an office, he candidly sounded-out candidates for jobs through prominent third parties. Only when Washington felt confident that an individual would accept a position, would he seriously consider the candidacy. Washington was “unwilling” to make appointments until he could “have an assurance—or at least a strong presumption, that the person appointed will accept; for it is to me an unpleasant thing, to have Commissions of such high importance returned, and it will in fact, have a tendency to bring the Government into discredit.” Washington relied on his most trusted colleagues to use their “prudence and discretion” in “gaining this knowledge. It is a delicate matter, and will not bear any thing like a direct application, if there is the least cause to apprehend a refusal.” While wanting to choose from among “the first characters of the Union,” he was also concerned about the “disappointment of smaller characters.” He prescribed it as a rule to maintain his “freedom of choice in all nominations” that no prior arrangements or promises would be offered “until the nomination is made.”

Alexander Hamilton
Alexander Hamilton


Comparing Washington’s judicial appointments with his successor’s, Alexander Hamilton wrote that “the modest and sage Washington . . . consulted much, pondered much, resolved slowly, resolved surely.”


It is interesting, and perhaps edifying, to see the criteria used by Washington in making his judicial nominations. Previous legal and judicial experience was critical—judgeships “should be filled by men who have been tried and proved.” The men appointed had to possess character and broad public esteem. Candidates had to be financially sound to preclude even an impression of economic improprieties. They had to be healthy because Supreme Court justices were required to take on the arduous task of riding the circuit over a sizeable expanse of territory. All of these traits meant that the candidates should be old enough to have demonstrated their ability but not too old to be frail. Judges should have served honorably during the war and should have supported the Constitution during the recent ratification debate. Washington sought a geographic balance in his appointments. And finally, those who applied directly to Washington, for a position usually failed; they seemed too necessitous in pursuing their own cause. Candidates needed to enlist a prominent go-between who could solicit a position for them.

James Madison
James Madison

Comparing Washington’s judicial appointments with his successor’s, Alexander Hamilton wrote that “the modest and sage Washington . . . consulted much, pondered much, resolved slowly, resolved surely.” James Madison said of Washington that “he was particularly inquisitive as to their standing with the public and the opinion entertained of them by men of public weight.” John Adams warned a job seeker, that he had little influence with Washington. “No man, I believe, has influence with the President. He seeks information from all quarters, and judges more independently than any man I ever knew. It is of no small importance to the public that he should preserve this superiority.” The only influence that worked on Washington was “the powers of reason and argument.” In the end, Washington developed criteria that helped him select “the fittest characters to expound the laws, and dispense justice” because he knew that “the happiness of our country and the stability of its political system” depended on it.


Links to source documents

George Washington to Joseph Jones, 14 May 1789

George Washington to John Jay, 5 October 1789

George Washington to James Madison, 23 September 1789

George Washington to Edmund Randolph, 28 September 1789

Washington to Edmund Pendleton, 28 September 1789

George Washington to John Rutledge, 29 September 1789

George Washington to James McHenry, 30 November 1789

John Adams to Sylvanus Bourne, 30 August 1789