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The Attempted Judge Swap of 1873
On January 13, 1873, President Ulysses S. Grant sent two judicial nominations to the U.S. Senate. Richard Busteed, who had served as the U.S. district judge for Alabama since 1865, was nominated to be an associate justice of the Supreme Court of the District of Columbia (now the U.S. District Court for the District of Columbia). David Humphreys, whom Grant had appointed to the aforementioned D.C. court in 1870, was nominated to the Alabama district judgeship. In a unique twist, the appointment of each judge was to take effect upon the resignation of the other. The Senate Judiciary Committee huddled to discuss whether it would approve the nominations, there being no historical precedent for the attempted swap of two federal judges. After a month came the answer: because neither judge had actually resigned his position, there were no true vacancies for the president to fill. The nominations, being “not regular” (in the committee’s words), were returned to Grant. This episode, the only one of its kind, highlights the careers of two unusually controversial federal judges.
Grant’s presidential papers do not reveal his motivation for attempting the judge swap, but contemporaneous press accounts attributed it to the request of Busteed and Humphreys themselves. Why might these judges have desired to switch places? One perhaps simplistic answer is based on geography. Humphreys, the District of Columbia judge, was an Alabama native who had served several terms in the state legislature. One of only two Confederate Army veterans Grant appointed to federal judgeships—and the only one appointed to a court outside of the former Confederacy—Humphreys may have longed to return to the South. Busteed, on the other hand, was a northerner. Born in Ireland, he spent much of his life in New York City before joining the Union Army in 1861. Washington, D.C., wasn’t home for Busteed, but it was significantly closer than Alabama.
Geography alone probably doesn’t account for the judges’ machinations, however. As detailed below, both Busteed and Humphreys were deeply unpopular in the areas they served, and each of them was subjected to efforts by the local bar to have them removed from office. When Grant submitted the nominations, a Washington correspondent for a midwestern newspaper noted, “Certain it is that the public opinion in this district is very much set against having Busteed placed in a judicial position here, while Alabamians can see no reason why they should have Humphreys inflicted on them.” After the nominations failed, an anonymous Washington writer asserted, “Busteed is a disgrace to his profession in Alabama, and Humphreys is unfit for the place he holds in this District.”
Busteed’s appointment was rooted in the secession crisis and outbreak of the Civil War, which touched off a wave of federal judicial resignations throughout the South. Judge Andrew Magrath of South Carolina resigned in November 1860, and eleven more southern district judges followed suit in 1861. As expected, Abraham Lincoln filled these vacancies with appointees loyal to the Union, mostly between 1861 and 1863. Almost all of the new judges had strong ties to the states in which they were to serve. Shortly after Alabama seceded in January 1861, Lincoln appointed George Washington Lane, a Huntsville attorney who had served as a state legislator as well as a state circuit court judge, to Alabama’s sole federal judgeship. Lane died in 1863 without ever holding court, however, as Alabama remained under the control of the Confederacy.
Lincoln replaced Lane with Busteed—who opposed Lincoln’s election but became a strong Unionist upon the outbreak of war and served as a brigadier general in the U.S. Army—in November 1863. Busteed came highly recommended by U.S. Senator Edwin D. Morgan of New York, the first chair of the Republican National Committee, and John W. Forney, the secretary of the Senate, both of whom cited Busteed’s support for Lincoln’s reelection campaign. Unlike Lane, however, Busteed had no preexisting ties to Alabama. Finally arriving to open court after the war’s end in 1865, Busteed was a true example of what southerners derisively called a “carpetbagger”—a northerner who came to the South after the war to help reimpose federal rule on the conquered region. As a result, it came as no surprise that Busteed ruffled feathers in Alabama when he began his judicial service.
By 1867, Busteed had already run into trouble with the locals. He was accused in the press of delivering “political harangues” to grand juries. Three Montgomery attorneys sued him for allegedly using his judicial position to deprive them of fees. Rumors circulated in that city that members of the local bar were considering trying to have the judge impeached. The mayor of Mobile asserted without explanation that “[t]he course of Judge Busteed of late, has been such, as to disgust all loyal men in this community.” Thomas Watts, governor of Alabama during the war who had returned to the practice of law, announced his intention to cease appearing in Busteed’s court because of the judge’s “rude and insulting” language. Watts was persuaded to return, but not before telling Busteed that his “manner, in Court, toward not only myself, but to the members of the bar of your Court, is not such as we have become accustomed to in any Court, State or Federal, and to say the least, it is unpleasant.”
It was not only those still loyal to the Confederate cause who bore ill will toward Busteed. Some so-called “scalawags”—southerners who joined the Republican Party and cooperated with Reconstruction—detested him as well. In December 1867, L. V. B. Martin, a scalawag serving as the U.S. attorney for the Southern District of Alabama, confronted Busteed in front of the federal courthouse and post office in Mobile. With little warning, Martin shot at Busteed four times, hitting him twice. While at first the judge’s wounds were thought to be fatal, he survived. Martin claimed that Busteed was attempting to have him removed as U.S. attorney so that a friend of his could fill the position. Others disputed Martin’s claim, attributing the attack to a federal corruption indictment and anticipated perjury indictment against him. Perhaps as a reflection of Busteed’s unpopularity, Martin’s trial for the shooting was postponed several times before the charges were ultimately dropped.
Despite recovering from the shooting and returning to the bench, Judge Busteed’s troubles continued. In 1869, two Montgomery attorneys persuaded the House Judiciary Committee to open an impeachment investigation on the basis of corruption in office. The allegations were not substantiated, however, and the committee declined to prepare articles of impeachment. In 1871, stories began to appear in the newspapers claiming that Busteed had once again switched his political loyalties to return to the Democratic Party. The judge allegedly had confided to friends that he opposed the recent Fourteenth and Fifteenth Amendments to the Constitution. One possibly fictitious account had Busteed, while drinking with a group of Alabama state legislators, telling them, “As the Hon. Richard Busteed, up there, presiding as United States District Judge, I am for the amendments; but as plain Dick Busteed, down here, boys, I’d see ‘em damned first!” Busteed’s apparent change of heart was hailed within the state but was undoubtedly concerning to Republicans in the Grant administration and in Congress. One of the attorneys who had sought Busteed’s impeachment quipped that the judge employed “politics as a gambler shuffles his cards—to suit the occasion.”
In May 1872, Alexander White—a prominent scalawag politician who had served in Congress from 1851 to 1853 and would serve again from 1873 to 1875—filed more charges against the judge with the House Judiciary Committee. Aside from one instance of alleged official corruption, the charges consisted of two claims: first, that Busteed did not reside in any of the judicial districts to which he had been appointed, as had been required by law since 1789, and second, that he had not been holding terms of court regularly.
It was in the midst of this second impeachment attempt that Busteed sought to leave his Alabama judgeship for what may have seemed the more peaceful climes of Washington, D.C. After the judge swap gambit failed, the House Judiciary Committee began a formal investigation of Busteed. Its report, issued in 1874, determined that Busteed was still a resident of the state of New York, having kept his family there, and had never established a permanent residence in Alabama. The judge stayed in temporary quarters only while court was in session and returned to New York immediately upon adjourning each term. The committee found that Busteed’s personal possessions in Alabama were limited to “a carpet, a music box, and a double-barreled gun.” The report further stated that Busteed held his courts irregularly and sometimes not at all. Faced with the near certainty of impeachment, Busteed resigned his judgeship in October 1874. The judge was not remembered fondly by many Alabamians. As one local newspaper put it in 1885, “Of all the Republicans who ever held sway in Alabama, Judge Busteed … is remembered as the most odious.” After his resignation, Busteed returned to practicing law in New York. He died in 1898.
While not as controversial as Busteed, Associate Justice David Humphreys of the Supreme Court of the District of Columbia experienced turbulence in his own judicial career. Grant appointed Humphreys to the bench after both of Alabama’s Republican senators recommended him as a staunch Union man. Humphreys stayed out of the newspaper headlines during his first few years on the court. Behind the scenes, however, members of the local bar grew increasingly frustrated with what they perceived as the judge’s intemperate conduct on the bench. As one local attorney recalled many years later, Humphreys’ “principal attributes were a shrill voice and a boundless capacity for liquor. We lawyers were accustomed to seeing him in all stages of intoxication, both on and off the bench. On the bench, drunk or sober, he played the tyrant, and an irascible one at that.” According to this anonymous attorney, Humphreys kept a glass of whiskey under the bench and had it taken to a tavern across the street to be refilled.
Despite many lawyers’ dislike of Humphreys, there was not yet any public pressure to remove him from the bench when Grant attempted to swap him with Busteed in 1873. Nevertheless, a hostile relationship with the local bar may have contributed to the judge’s desire to return home to Alabama. If such was indeed the case, Humphreys’ inclinations were correct, as his troubles finally boiled over in 1876. In that year, Washington attorney Reuben D. Mussey, who had been a U.S. Army colonel during the Civil War, filed formal charges against Humphreys with the House Judiciary Committee. Mussey asserted that Humphreys was “wholly incompetent … by reason of gross ignorance of law and mental infirmities” as well as “moral unfitness,” “grave improprieties,” and “judicial crimes.” One of the many charges was that the judge’s behavior toward those in his courtroom was “fussy, ungentlemanly, discourteous, overbearing, tyrannical, and oppressive,” and that he was frequently drunk on the bench. Mussey further claimed that Humphreys had borrowed money from local attorneys and failed to repay them.
A special committee of the House began an investigation and took the testimony of several witnesses in July and August 1876. Most of those who testified were extremely critical of Humphreys, and several attorneys said that they avoided trying cases before him whenever possible. Some asserted that Humphreys’ rulings from the bench were often incoherent. Despite substantial evidence against Humphreys, the committee announced in early August that it had postponed further investigation indefinitely. Congress ended its session ten days later, and the investigation was never resumed. A newspaper report from 1877 suggested that Humphreys had been proven unfit, “but there was not enough evidence on which to base proceedings for his impeachment.”
Humphreys remained on the bench until his death in 1879. Despite the controversy surrounding his judicial career, The Evening Star of Washington, D.C., was kind in its remembrance, describing Humphreys as “a man of indomitable courage, knowing no fear,” who was quick to “tender an apology if he thought he was in the wrong.” The paper also noted that many of Humphreys’ decisions had been sustained on appeal and that the Supreme Court of the United States had on occasion adopted views Humphreys expressed in dissenting opinions.
Grant’s attempted judge swap, had it been successful, might have saved both Busteed and Humphreys a good bit of trouble. As it was, the failed scheme became a minor footnote in the annals of the federal judiciary. Nothing of the sort has been tried since. In fact, no other judge of a federal trial court has ever been nominated to a federal trial court in a different state. (The nearest exception is Judge John Jay Jackson Jr. of the Western District of Virginia, whose district was reorganized as the new District of West Virginia in 1864.)
In the 1960s, Judge J. Skelly Wright of the U.S. District Court for the Eastern District of Louisiana found himself in a position analogous to that of Busteed and Humphreys nearly a century earlier. Wright found himself hated by white segregationists throughout Louisiana for his repeated rulings in favor of the NAACP in civil rights cases. The most controversial of these was Bush v. Orleans Parish School Board, in which Wright ordered the desegregation of New Orleans public schools in 1960. After numerous threats against the judge’s life, including the burning of a cross on his front lawn, President John F. Kennedy removed Wright from his turbulent circumstances by appointing him to the U.S. Court of Appeals for the District of Columbia Circuit in 1962. Kennedy had considered following the usual practice of appointing a trial judge to an appellate court in their own region—in this instance the New Orleans-based Fifth Circuit—but believed that southern senators would block Wright’s confirmation to that court. It can be said with near certainty, however, that Kennedy never considered attempting a judge swap.
Jake Kobrick, Associate Historian
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Related FJC Resources:
Learn about Judge Richard Busteed and Associate Justice David C. Humphreys in the Biographical Directory of Article III Federal Judges, 1789–present.
Freyer, Tony, and Timothy Dixon. Democracy and Judicial Independence: A History of the Federal Courts of Alabama, 1820–1994. Brooklyn, NY: Carlson Publishing Inc., 1995.
Morris, Jeffrey Brandon. Calmly to Poise the Scales of Justice: A History of the Courts of the District of Columbia Circuit. Published for the Historical Society of the District of Columbia Circuit. Durham: Carolina Academic Press, 2001.
Wiggins, Sarah Woolfolk. “Press Reaction in Alabama to the Attempted Assassination of Judge Richard Busteed.” Alabama Review 21 (1968): 211–9.
This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to “conduct, coordinate, and encourage programs relating to the history of the judicial branch of the United States government.” While the Center regards the content as responsible and valuable, these materials do not reflect policy or recommendations of the Board of the Federal Judicial Center.