The Neo-Confederate SCOTUS Justice

On February 4, 2002, a current member of the United States Supreme Court gave the following remarks at Loyola University, in New Orleans: a tribute to Judah P. Benjamin, a former U.S. Senator who resigned and took part in the secession of Louisiana.  He was quickly appointed to a cabinet post by President Jefferson Davis: first as Attorney General, and subsequently as Secretary of War and finally as Secretary of State of the Confederate States of America.

Benjamin has been described as “the brains of the Confederacy.”

After the fall of the Confederate government, Benjamin evaded capture by the Federal government, fled to the Bahamas, and from there moved to England where he had a long and prosperous career as a barrister. There was no attempt to extradite Benjamin to the United States.

The Justice who praised this prominent member of the Confederate government (who was not only a slave-owner, but also a defender of slavery) still sits on the bench of the U.S. Supreme Court.

Is this problematic?  If progressives knew about this, would they seek this Justice’s resignation?

Here are the Justice’s remarks:

Judah Benjamin ranks first in time, and has captured my imagination. Alone among the four brave spirits I will describe Benjamin never served as a judge. Recall that Judge Ainsworth, in 1961, gave up the seat he occupied for some eleven years in the state senate for an appointment to the federal bench. In contrast, Judah Benjamin, in 1853, declined the nomination of President Millard Fillmore to become an Associate Justice of the United States Supreme Court. Just elected U. S. Senator from Louisiana, Benjamin preferred to retain his First Branch post. His choice suggest that the U. S. Supreme Court had not yet become the co-equal Branch it is today.

Had he accepted the Third Branch nomination, Judah Benjamin, not Louis D. Brandeis, would have been the first Jewish Justice to serve on the High Court. It was just as well, for Benjamin’s service would not have endured. In early 1861, in the wake of Louisiana’s secession from the Union, Benjamin resigned the Senate seat for which he had forsaken the justiceship. No doubt he would have resigned a seat on the Court had he held one, as did his friend Associate Justice John Archibald Campbell of Alabama. (Campbell, incidentally, opposed secession and freed all his slaves on his appointment to the Supreme Court. But when hostilities broke out, he remained loyal to the South. He eventually settled in New Orleans where he built up a thriving law practice.)

Benjamin is perhaps best known for his stirring orations in the United States Senate on behalf of Southern interests and for his service as Attorney General, Secretary of War, and finally Secretary of State in the cabinet of Jefferson Davis. After the Confederate surrender, Benjamin fled to England; en route, he narrowly survived several close encounters with the forces of storm, sea, and the victorious Union. Benjamin’s political ventures in the Senate and in the Confederacy were bracketed by two discrete but equally remarkable legal careers, the first here in New Orleans and the second in Britain.

Having left Yale College without taking a degree, Benjamin came to New Orleans in 1832 and was called to the bar that same year. Although he struggled initially, his fame and fortune quickly grew large after the publication, in 1834, of A Digest of Reported Decisions of the Supreme Court of the Late Territory of Orleans, and of the Supreme Court of Louisiana. Benjamin’s book treated comprehensively for the first time Louisiana’s uniquely cosmopolitan and complex legal system, derived from Roman, Spanish, French, and English sources. The work digested “every point or principle” decided in each Louisiana High Court case. Benjamin’s flourishing practice and the public attention he garnered helped to propel his election by the Louisiana legislature to the United States Senate. (In pre-Seventeenth Amendment days, until 1913, Senators were chosen not directly by the People, but by the Legislatures of the several States.)

Benjamin’s fortune plummeted with the defeat of the Confederacy. He arrived in England with little money and most of his property lost or confiscated. His wife and daughter settled in Paris, where they anticipated support from Benjamin in the comfortable style to which they were accustomed. He nevertheless turned down a promising business opportunity in the French capital, preferring to devote himself again to the practice of law, this time as a British barrister. He opted for a second career at the bar notwithstanding the requirement that he start over by enrolling as a student at an Inn of Court and completing a mandatory three-year apprenticeship before qualifying as a barrister. This, Benjamin’s contemporaries reported, he did cheerfully, although he was doubtless relieved when Lincoln’s Inn determined to waive some of its requirements and admit him early.

Benjamin became a British barrister at age 55. His situation at that mature stage of life closely paralleled conditions of his youth. He was a newly-minted lawyer, with a struggling practice, but, he wrote to a friend, “as much interested in my profession as when I first commenced as a boy.” Repeating his Louisiana progress, Benjamin made his reputation among his new peers by publication. Drawing on the knowledge of civilian systems gained during his practice in Louisiana, Benjamin produced a volume in England that came to be known as Benjamin on Sales. The book was a near-instant classic. Its author was much praised, and Benjamin passed the remainder of his days as a top earning, highly esteemed, mainly appellate advocate. His voice was often heard in appeals to the House of Lords and the Privy Council.

Benjamin’s biographer tells us that “[h]owever desperate his case, Benjamin habitually addressed the court as if it were impossible for him to lose.” This indomitable cast of mind characterized both Benjamin’s courtroom advocacy and his response to fortune’s vicissitudes. He rose to the top of the legal profession twice in one lifetime, on two continents, beginning his first ascent as a raw youth and his second as a fugitive minister of a vanquished power. The London Times, in an obituary, described Judah Benjamin as a man with “that elastic resistance to evil fortune which preserved [his] ancestors through a succession of exiles and plunderings.”

So who is this Neo-Confederate Justice?  Click here.

Reprinted from LewRockwell.com

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