Page:The Supreme Court in United States History vol 1.djvu/66

40 the consequences, which will be apparent in your mind, to taking him from our State bench, Lowell's situation from such neglect of him will be intolerable. Having held a similar rank under the old Confederation, which commission is superseded only by the adoption of the new Government, the neglect to appoint him to the Supreme Court will imply a conviction in the mind of him who appoints, that he had been tried and found wanting. This certainly will be disgraceful to a very good and able man. From a regard to the happiness and welfare of this State, and a wish that the expectations of a valuable part of the community should not be disappointed, and that an honorable and good man should not be extremely mortified, I request your attention and influence in this appointment, and I am sure, if you see no just reason on National grounds for preferring Cushing to Lowell, you will endeavor that the latter shall not be disgraced.

In spite of these arguments, Washington decided to appoint Cushing, who had served for nine years as Chief Justice in Massachusetts and was then fifty-seven years old—the oldest man chosen on the new Court.

In Pennsylvania, the President's field of choice was wide, for eminent lawyers were numerous. Thomas McKean, who had been Chief Justice of that State for twelve years, was strongly urged by many and had early filed an application for appointment, writing that he had "an ambition to share in Your Excellency's Administration" and that he hoped it would not "be deemed indelicate in me to give a short account of myself and my studies":

My character must be left to the World. I have lived in troublesome times in an unsettled and tumultuous government. A good Judge cannot be very popular, but I believe that my integrity has never been called in question; and it is certain that no judgment of the Supreme Court of Pennsylvania since tie Revolution has been