Adams now faced the daunting task of selecting a replacement -- a reliable
Federalist who would neither enrage his political enemies nor offend the other
Supreme Court justices. From both partisan and ideological perspectives,
Adams and Federalists of all persuasions -- High or moderate, Yankee or
Southern -- considered it vital that they keep watch on the Republican regime
through the judiciary, the only branch of the national government they would
still control after Jefferson's inauguration. Even before they lost the election,
the Federalists had planned to use the courts to incorporate abstract principles of
law and justice and to protect their partisan and economic interests. Speaker of
the House Theodore Sedgwick bluntly stated the Federalist perspective on the
tactical utility of the national courts: "[M]uch may and ought to be done to give
efficiency to the government, and to repress the efforts of the Jacobins against it.
We ought to spread out the judicial so as to render the justice of the nation
acceptable to the people, to aid the national economy, to overawe the licentious,
and to punish the guilty." In his annual address to Congress in December 1799,
Adams urged the lawmakers to reorganize the federal courts to make them more
powerful and efficient. After debating several measures in 1800, the Federalist-
run Congress finally pushed through the Judiciary Act of 1801 in February of
that year. ³

When Adams received Ellsworth's resignation on 15 December 1800, the
Judiciary Act was scheduled for debate and likely passage in just a few weeks.
This timing became a crucial consideration in Adams's choice of a new chief
justice. ⁴ The act -- an awkward mixture of needed reform and blatant
partisanship -- contained several important provisions affecting the size,
jurisdiction, and responsibilities of the federal courts. The section that most
concerned Adams reduced the number of Supreme Court justices from six to
five with the next vacancy. Ostensibly intended to prevent tie votes, this
diminution would also prevent Jefferson from choosing a new justice for several
years. The proposed reduction did, however, put pressure on Adams to
nominate someone whom the Senate would confirm quickly. If he delayed his
selection until the Judiciary Act came up for debate, the Republicans would
likely join the Federalists in voting for it to deny Adams the chance to fill one
vacancy. Also important for Adams was that he would not be able to pick an
outsider for chief justice but would have to promote one of the associate
justices. He was less than elated at the prospect of the aged and ill senior
associate, William Cushing, or the Hamiltonian who stood next in line, William
Paterson, occupying the highest judicial office in the land.

On 18 December 1800, the President nominated John Jay, governor of New
York. In doing so, Adams followed the pattern, markedly unlike Washington's,
of his prior two appointments. He made up his mind rapidly without consulting
anyone in his cabinet or his party, and he did not even find out if Jay would
accept by asking either the nominee or his associates. On the face of it, Jay
seemed an excellent choice. He had served creditably as the first chief justice
from 1789 to 1795 and so had the prestige necessary to satisfy the other justices.
He had not betrayed Adams by aligning himself with the Hamiltonians.

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