Republicans had found the means to eliminate the Midnight Judges, but without new slots, Jefferson had to wait for vacancies to fill, and vacancies were slow in coming. His relatively conciliatory early approach was insufficient for some in his party seeking positions, and likely emotionally dissatisfying to him personally. Jefferson had the job; he had the votes in Congress; why shouldn’t he be permitted to govern, unencumbered by his political opponents on the Federal bench? His conviction grew after his Republican majorities in the House and Senate expanded with the Midterms. The public had spoken; the Federalists were in a political death spiral; it was time for the obstruction to end.
Two big “legal” political questions dominated the moment. The first was the power of the Judiciary itself. Were Federal judges, including those of the Supreme Court, limited only to reviewing the application of a law or policy, or did they have the authority to go further and determine its Constitutionality? If the answer to that was yes, and the courts were dominated by Federalists, what limits would they place on Republican law-making? The second went to the length of judicial terms—the Constitution called for lifetime appointments except in limited circumstances. Did the Framers (many of them still present and accounted for) mean “lifetime” or was there some secret code that enabled swifter removals? Some Republicans, like Virginia’s William Branch Giles, who served in both the House and Senate during these debates, advocated for “an absolute repeal of the whole Judiciary and terminating the present offices and creating a new system.” While Giles was a radical, Jefferson himself was irked by the procedural obstacles to removal and expressed the thought that Presidents should be able to fire federal judges upon recommendation from both chambers of Congress. More moderate Republicans thought the plain language of the Constitution was both clear enough and wise enough, even if the short-term political result would be less than optimal.
The first question, on the power of the Judiciary, was answered by the Supreme Court’s February 24, 1803, decision in Marbury v. Madison, which established Judicial Review. It also displayed Chief Justice John Marshall’s formidable political finesse. Jefferson got the result he wanted as to the critical question of Marbury’s (and, by extension, others’) appointment, but also had to accept the idea of the Judiciary being an arbiter of Constitutionality.
That didn’t mean Jefferson was happy. Marbury and Marshall were irritants, and the mortality rates for Federalist judges weren’t exactly breaking the Republicans’ way. It didn’t at all help his mood when one of Marshall’s fellow Justices, Samuel Chase of Maryland, continued with a string of inflammatory and openly, objectively, partisan displays.