III. Ross Arrives and McKenna Moves Up

The available indications are that Gilbert's relations were strained not only with McKenna, but also with Judge Erskine Ross. Ross and Gilbert

served together for over thirty years on the Ninth Circuit. Their judicial differences extended to a wide range of issues that arose in the federal courts. How far their diverse backgrounds shaped their judicial disagreements is difficult to say, but their contrasting family origins did little to promote comity between them. Ross too hailed from a prominent Virginia family, but his chose to stay in Virginia and fight for the South. Born June 30, 1845 at Bel Pré, his father's plantation in Culpeper County, Virginia, Ross was fifteen years old when war broke out. He had just enrolled at Virginia Military Institute when four companies of V.M.I. cadets were ordered to Camp Lee, Virginia, outside Richmond, under the command of Thomas J. ("Stonewall") Jackson. These young cadets served as drillmasters for the raw recruits who began to pour in after Virginia seceded in April of 1861. Not long after the war started, Ross saw battle at Cedar Run. His military service undoubtedly would have continued but for a conspiracy of three influences: his father insisted on his returning to V.M.I., his three older brothers were already in the Confederate Army, and Ross himself was barely sixteen years old at the time. He continued his education at V.M.I. and became cadet captain of A Company, which saw service at the Battle of Newmarket.^[35]

The devastation in his home state at the conclusion of the war left few opportunities for Ross. After helping to found the Alpha Tau Omega fraternity in Richmond, Ross left Virginia in the spring of 1868. At the invitation of his uncle, Cameron E. Thom, Ross journeyed to Los Angeles, traveling by boat around South America just a year before the first overland railroad was completed. Only 5,000 persons of various nationalities inhabited Los Angeles when Ross arrived on May 19, 1868, but the city was to grow during Ross's residency there, passing 700,000 by the mid-1920s. Ross himself helped to establish the nearby city of Glendale, which by the time of his death in 1928 had a population of more than 23,000.^[36] Ross wasted little time embracing the legal profession under the tutelage of his uncle, a practicing attorney in Los Angeles. Ross was admitted to the state bar in 1869 and practiced for ten years.

In 1879 Ross was elected a California Supreme Court justice for one of the truncated, three-year terms prescribed by the state's new constitution. At the end of his term, Ross was reelected for a full term of twelve years. After considering resignation in 1884 or early 1885, Ross was persuaded by a strong showing of public support to continue in office for another year. Then, despite a petition signed by more than one hundred leaders of the bar urging him not to step down, he announced

his resignation effective October 1, 1886. Ross's reasons for relinquishing his seat on the state Supreme Court remain unclear. Even years after his resignation, Ross offered only that he resigned for "several good and substantial reasons." Two theories are plausible. One is that Ross left the court to take a more lucrative position in private practice. This theory does not seem entirely persuasive, given that Ross practiced law for no more than a year, taking a seat on the federal district court in 1887. The more likely reason for Ross's resignation is that he stepped down to move his sickly wife and child to the warmer climate of southern California.^[37]

Ross's resignation from the California Supreme Court made him a tempting candidate for President Grover Cleveland to appoint to the judgeship for California's southern district. J. D. Bicknell, a distinguished Los Angeles lawyer whom Ross himself had recommended for the judgeship, was the early front-runner for the position, but friends of Ross enthusiastically pressed his nomination with the president and with Justice Field, who retained some influence in questions of California judicial politics. Francis G. Newlands, a lawyer in San Francisco and later a Nevada representative to Congress, for instance, sent a telegram to Justice Field on December 10, 1886, lauding Ross as the best candidate for the district judgeship. Newlands explained that Ross had resigned not from disinterest in public service, but due to his family's health, and he extolled Ross's virtues: "He possesses in an eminent degree the judicial faculty, and in point of character, reputation and general esteem is surpassed by no man in the State." Justice Field's response to the telegram showed that getting Ross nominated would be difficult. He pledged to bring Ross's great merits to President Cleveland's attention, but Field himself was already committed to another candidate. Despite the fact that most of the Democratic organization and California's congressional delegation, including Leland Stanford, had come out for Bicknell, Ross was held in such high esteem that when word of his availability for the district judgeship was made known, dignitaries throughout the state began to communicate their support to the Democratic administration. But it was no sure thing that Ross would accept the nomination if it were offered. Newlands telegraphed Ross's friend James de Barth Shorb: "Have received telegram that President has offered position to Ross. See him immediately & urge acceptance answer."^[38] Though met with surprise by the press, the appointment of Ross was praised, and he earned a national reputation as district judge by his handling of several important cases. Most notable among these were his decisions in one of the 1894 Pullman strike cases and in the case of Chum Shang Yuen . This latter case led to

a spat between Ross and Attorney General Richard Olney over whether the Justice Department would enforce the Chinese Exclusion Act, and it marked Ross as very strict on the issue of Chinese exclusion.^[39]

When Congress established the third judgeship for the Ninth Circuit in 1895, therefore, Ross seemed an obvious candidate for elevation. Even after his appointment to the circuit court of appeals bench in early 1895, Ross well exemplified the flexibility in roles performed by federal judges in this era. The creation of circuit courts of appeals did not lead immediately to specialization of the federal judiciary. Ross, for instance, continued to hear trials regularly for more than a decade after becoming circuit judge. Indeed, he rendered some of his most important trial court rulings after his elevation, including his decision to strike down as unconstitutional California's irrigation law in Bradley v. Fallbrook Irrigation District , and his ruling to reject the United States government's suit to collect on the bond of Leland Stanford's estate in United States v. Stanford . Ross's handling of these cases more than validated his excellent reputation as a judge.^[40]

The elevation of Ross brought the Ninth Circuit's contingent of circuit judges to three for the first time. But within two years, politics intervened to disrupt the court's composition and to present an intriguing circumstance that determined the career paths of two Ninth Circuit judges, Ross and McKenna. After McKinley won the 1896 election, he persuaded Joseph McKenna to relinquish a life-tenured judgeship on the Ninth Circuit to become attorney general. McKenna and McKinley had formed a warm friendship during their joint service on the House Ways and Means Committee during the 1880s. McKenna, touted as a possible secretary of the interior or attorney general, was prepared to accept either of the two positions. In the wake of a spirited controversy between Catholics and non-Catholics a few years earlier over the interior secretary's administration of Indian schools, McKenna's Catholicism aroused some opposition to the post at the Department of the Interior. McKinley shrewdly named McKenna for the top spot at the Justice Department, thus nullifying the religious issue.^[41] President McKinley announced this appointment in February of 1897, a full month before he himself was to take the oath of office. Not insensitive to the political patronage involved, McKenna announced that he would delay submitting his resignation to prevent President Cleveland from filling his Ninth Circuit seat with a Democrat. McKenna did, however, publicly hint that he favored William Morrow for elevation to his seat on the Ninth Circuit when it became available.^[42]

McKenna's appointment to the Cabinet was generally greeted with favor among Californians, who were proud to have their state represented for the first time in a president's Cabinet. Once ensconced in the office of attorney general, McKenna established a hearty work ethic that usually met with approval. He was regarded by the media as something of an anomaly—a Cabinet officer who rode his bicycle to work. "There is something quite interesting in the spectacle of an Attorney-General of the United States, a man of the greatest dignity and learning, scudding about at dewy morn on a racing-machine; but the interest grows to wonder when it is noted that he is quite capable of going along without using his handlebars!" McKenna frequently took lunch at his desk, one hand on his sandwich and the other on a book, much to the consternation of subordinates in the Department of Justice who struggled to keep pace. "'It is rather a wonder to me,'" one such official reportedly said, "'that he does not sleep in his office.'"^[43]

Perhaps it was this dedication to hard work and physical fitness that enabled McKenna to enjoy a lengthy career, which reached a higher station when Justice Field finally announced his retirement. During the election year of 1896, Field had begun to intimate that he was ready to step down from the Supreme Court. A feud between Field and President Cleveland, however, led the justice to remain on the bench until a new president took office. Field's well-known intransigence may have prevented Ross's elevation to the Supreme Court, for the young California judge was widely rumored to be Cleveland's first choice. Field held on, however, despite Justice Harlan's by now legendary visit to persuade him to step down. During 1897, the justices had huddled to devise a way to persuade their enfeebled colleague to resign. They drafted Justice John M. Harlan to remind Field of the time he had gone to Justice Robert Cooper Grier to persuade him to step down. They hoped a retelling of the story would drive the hint home to Field that he should retire. When Harlan finished, Field burst out: "'Yes! And a dirtier day's work I never did in my life!'"^[44]

Field's resistance weakened when the new president took office. In April of 1897, a month after the inauguration, Field privately communicated to the new president his plans to retire on December 1 of that year. Regional politics caused a buildup of pressure to fill the Supreme Court vacancy with another Californian. Thus Field's decision to resign while McKinley, and not Cleveland, was president opened the way for the appointment of the Republican McKenna. The California judiciary's leading Democrat, Erskine Ross, had missed his first opportunity for

elevation to the Supreme Court. Ross was held in such esteem, however, that he also received prominent mention as a successor to Justice Rufus Peckham twelve years later.^[45]

McKinley's nomination of McKenna to the Supreme Court sparked fierce opposition. His religious faith was one impediment, given the prevalence of anti-Catholicism in the late nineteenth century. A number of citizens from Maine, for example, presented petitions to their senators urging the president not to name McKenna as a successor to Field. These petitions contained inflammatory language:

[T]here is now one Roman Catholic Judge upon the Supreme Bench of the United States; and whereas, the appointment of another papist will give the papist[s] two ninths of the members of said court, when they have but proximately one ninth of the population of the United States; and whereas, all papists owe their first and highest allegiance under the canon law, which is an article of their religious faith and binding upon their consciences under the penalties of their Church, which in all cases involving a conflict between their Church and the State, compels their obedience to the Supreme Pontiff and not to the Constitution of the United States and the laws of the land.^[46]

President McKinley had attempted to insulate himself somewhat from anti-Catholic opposition by announcing from the outset of his campaign that he intended to represent all Americans, Protestant and Catholic alike. Such statements, however, failed to deter anti-Catholics from opposing McKenna's appointment to the Supreme Court.^[47]

A second impediment to McKenna's elevation was more difficult to overcome: the candidate's detractors questioned his competence for the job. Instead of rallying behind their former colleague, both of McKenna's Ninth Circuit brethren opposed the appointment. Despite press reports that the nominee would easily be confirmed, Gilbert led an attack on McKenna in a futile attempt to prevent confirmation. The recognized ringleader of the McKenna protests, Gilbert went so far as to present a petition advocating the nominee's rejection by the Senate. Other prominent Oregonians signed the petition, including Judge Charles B. Bellinger of the United States District Court and a number of state judges.^[48] Firsthand experience as McKenna's colleague sparked Gilbert's animus. In nearly five years' service with McKenna on the Ninth Circuit, Gilbert had had numerous opportunities to see firsthand the quality of Judge McKenna's mind and character. In his view, both came up lacking.^[49]

He was more circumspect than Gilbert, but Ross too favored Senate rejection of McKenna, though he knew it was unlikely. Whether because he harbored a lingering resentment at his own lost opportunity or be-

cause he genuinely believed that McKenna was ill suited to the task, Ross indiscreetly shared his views with the press. "'I do not know of any concerted action to defeat his confirmation in the event he is appointed,'" Ross told them. "'But attorneys generally who are acquainted with Judge McKenna as a rule do not think the appointment is a wise one. He is not competent.'"^[50] Unlike Gilbert, however, Ross did not actively lobby against the nomination.

Opposition to McKenna's appointment was marked; the daily San Francisco newspapers throughout early December, 1897, printed seemingly every rumor about his Supreme Court prospects. This intense press attention partly reflected the rivalry between California and Oregon. The California papers also perceived that the Oregon protest was animated by state jealousy. Although this opposition did not seriously threaten McKenna's promotion, the Senate delayed confirming him until January of 1898. The San Francisco Call confidently took credit for holding off McKenna's enemies and for preserving the appointment to the high court: "It is apparent that The Call has turned the attack on Judge McKenna and that its promoters are in retreat." McKenna was confirmed by the Senate on January 21, 1898, with opposition coming only from Senator William V. Allen, the populist from Nebraska, "whose hand seems to be against all men who do not believe in his peculiar doctrines."^[51] McKenna served on the Supreme Court until his retirement on January 5, 1925, his long service overshadowed by the brilliance of colleagues such as Justices Harlan, Brewer, Holmes, and Brandeis. He died November 21, 1926.