David Davis, the Supreme Court justice, U.S. senator, and campaign manager for Abraham Lincoln, was not a very good lawyer. He was not a legal scholar, barring a couple of solid Supreme Court opinions he crafted. He wasn’t even a notable orator by the standards of the day, which in the 1800s ran to speeches of two-plus hours in length.
He was, though, a very good judge, according to author, law school professor, and retired circuit Judge Raymond McKoski. Davis was a fantastic organizer, had boundless energy, was exceptionally persuasive in person and in small groups, and had such utter probity his impartiality was often extolled and never questioned.
McKoski is the author of a new biography of Davis, whose mansion and historic site in Bloomington attracts thousands of visitors visit each year. David Davis: Abraham Lincoln’s Favorite Judge will be out next month from the University of Illinois Press.
Impartiality
In the face of personal relationships with Lincoln and other attorneys on the circuit he rode in Central Illinois, the willingness to play cutthroat party politics as the nascent Republican Party took shape, and varied business interests, that impartiality and independence is remarkable then and today.
“This was like part of his nature. He described himself as a man of fixed opinions. He shared with Lincoln few similarities, but one was he relied on his own counsel. Neither he nor Lincoln, really relied on other people's opinions. They considered them, but in the end, they relied on their own judgment. Davis was also a very strong willed individual, and while criticism hurt him, it didn't detour him from his mission, which he thought was to act impartially, decide cases based on the facts, and leave his personal opinions aside, which he was extraordinarily able to do,” said McKoski.
In the beginning of his career, Davis tried a couple cases in court, found it wasn’t his forte, and basically abandoned trial work, said McKoski. As a judge, though, he benefitted from public scrutiny. Much as political oratory was considered popular entertainment in the early and mid-1800s, when the circuit court came to town it too was a public attraction.
“They sat there and watched him when he was dealing with the lawyers and could judge firsthand his impartiality. He was not a great public speaker, but he was good in dealing with people and in addition to that pushed mediation, settlement, and what would be called arbitration … All that made him a popular judge, even though he wasn't a scholarly judge,” said McKoski.
Of all the attorneys on the Central Illinois circuit, Davis was closest to Lincoln. They spent late nights together, talking and joking. One could be excuse for guessing that Lincoln would do well in front of Davis. McKoski said Lincoln didn’t do better than anyone else.
“As a matter of fact, in cases that we call bench trials, meaning the case was decided by the judge without a jury, Lincoln lost more cases, more bench trials, in front of Davis than he won, another indication of his impartiality,” said McKoski.
Outside the courtroom, McKoski said, Davis was totally partial to Lincoln, pushing his career all the way to the presidency.
Scholarship
McKoski said his book is only the second full biography of Davis. He praised the first one, Lincoln’s Manager, written in 1960 by Willard King. McKoski said that came before the internet era and research now allowed him to easily find broader sourcing on several parts of Davis’s life.
“I concentrate on two things — Davis' vital contribution to Lincoln's political rise, starting
from the [two failed] U.S. Senate races [in 1855 and 1859] through nomination and election as president, and then his impartiality as a judge, on the trial bench and on the Supreme Court bench, have added some things, I think, to the literature,” said McKoski.
Politics
McKoski said one previously unaddressed question is why Davis was the 1860 campaign manager when there were other prominent Republican Party members available for the task.
“Somewhat to my surprise, the other leading Republicans in Illinois, Norman Judd, the chairman of the Illinois Republican Party, Lyman Trumbull, Orville Browning, people who Lincoln trusted and worked with, all had these disqualifying factors that are pretty blatant, including not supporting Lincoln for the nomination up to the day the convention started,” said McKoski.
McKoski spent two chapters on the Senate campaigns. Willard King gave them two paragraphs, said McKoski. Stephen Logan was Lincoln's law partner. Logan ran Lincoln’s first campaign for Senate, and both Lincoln and Davis highly criticized Logan's political abilities.
“Lincoln said about his former partner that Logan, when he ran for the Illinois Supreme Court, he was the ‘worst beaten candidate ever since elections were invented.’ Now that's pretty strong. And Davis said that Logan wasn't cut out to be a politician,” said McKoski.
McKoski said Lincoln and Davis learned from the two failed efforts about the need to cut deals, and the art of running a dark horse candidacy. Lincoln himself had lost to that strategy in one of the Senate campaigns as then-Gov. Joel Matteson lobbied lawmakers by securing promised support on second and third ballots if it became clear Lincoln couldn’t secure enough to win. Lincoln had to throw in the towel and has his remaining supporters to go for Lyman Trumbull to avoid a Matteson victory.
“Davis was an excellent organizer. Had been in his law practice, had been in his private life, had been as a judge. People always commented he had exceptional energy. Would run courts into the night, would go to the library in Springfield and his off hours to research questions. A lot of judges didn't do that. Organization is one. But the second thing he learned is you gotta have a plan. You gotta have a strategy,” said McKoski.
Davis’ 1860 plan included details on how to approach each of the state delegations — what to argue with them, what to argue for Lincoln, and what to argue against.
“Lincoln said it's not always best to have the most votes going into a contest, it's not necessarily the best to be the leading candidate. Sometimes it's best to be everybody's second choice and then work to make sure the leader fails. So now everybody's looking for their second choice, and this was part of their strategy,” said McKoski.
They had to knock out the leading candidate, William Seward, and at the same time erode support for other potential second-choice candidates.
“They had help from other delegations doing that. Davis recruited the governor of Indiana to be talking against Seward, and other people knock that guy down, and then put your candidate toward forward as the logical alternative ... and Davis learned part of this from the second senatorial campaign,” said McKoski.
Supreme Court opinions
Lincoln appointed Davis to the Supreme Court in 1862. In 1866, Davis authored the opinion in the landmark case Ex parte Milligan. The court ruled military tribunals cannot be used to prosecute citizens when civil courts are open and operating.
He also crafted an opinion that might have presaged some of the civil rights cases of the 1960s: Railroad company v Kate Brown in 1873.
Brown was an African American getting on the train in Alexandria, Virginia, to go back to Washington. She refused use the car reserved for Black people only.
“The conductor says, 'No, it's for whites only. You need to sit in, using other language, the Black people's car.' No, she said. He said, you got to do it. I'm going to drag you off. She said, the only way you're going to get me off this train is to drag me off dead and grasped onto the rails,” said McKoski.
Brown was hurt badly. She also had clout, McKoski said, because she was in charge of the ladies’ lounge on the second floor on the balcony at the Senate building. Senators did an investigation, had a hearing, and witnesses. Brown also sued the railroad company.
The railroad argued that under its federal charter it did nothing wrong because the cars that were for whites going to Alexandra were the same cars reserved for Blacks going back to Washington.
“Davis rejected that saying the temper of Congress at the time is it would be a badge of slavery, a remnant of slavery, to separate the races. Congress, at the time, was talking about the 13th and 14th Amendments,” said McKoski.
McKoski said he wishes he knew why that opinion became a historical footnote when the 1896 case Plessy v Ferguson enshrined the "separate but equal" doctrine. He said even the facts of Plessy are "almost identical to the Brown case." He said the justices in Plessy clearly considered the 13th and 14th Amendments to be different.
“They didn't consider this to be a badge of slavery, and I'm guessing is because of the mood of the country changed. Segregation was now more acceptable to a larger number of people, and so they enshrined Plessy versus Ferguson,” said McKoski. “If that (Brown) opinion would have been followed, there would have been no separate but equal doctrine, because, as Davis said, it was a remnant of slavery … that idea was lost,” said McKoski.
McKoski noted Justice William O. Douglas used the same phrase Davis had, "a badge of slavery," in the case Brown v Board of Education, which ruled school segregation was unconstitutional.
“I'm guessing he (Douglas) had read the case and maybe was harkening back to the (Kate Brown) case,” said McKoski.
The Senate
After Davis stepped down from the Supreme Court, he became a U.S. senator. McKoski writes Davis’ independence in that political setting was a liability, not the strength it had been in the courts.
“The Senate is a political body, so his being an independent party of one really hurt his chances in sponsoring legislation, being a moving force in the Senate, convincing people to vote for one thing or oppose another thing,” said McKoski. “But he treasured that independence in both of those governmental jobs.”
Davis and Lincoln
McKoski said he first became fascinated by Davis after touring the mansion with a docent who was "unbelievably good." He said the guide made Davis come alive.
“His good points, not so good points, his life. He had been sent off to college at 15 with $45 and a coat that was too small … and you're on your own. She just made his life so interesting that I started to look into it,” said McKoski.
Lincoln said he "kept no secrets from Davis." Davis administered Lincoln’s estate after the president was assassinated and was the guardian for Lincoln’s younger son. He took no payment.
“It's a great story, besides being historically important, it's a great story of these two people's interaction and Davis' political and judicial life,” said McKoski.
