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Indiana Judges Association: Presidential inaugurations show judicial power

February 8, 2017

Author’s note: This column is an edited reprint originally published by Indiana Lawyer in January 2009, the last time the United States had a new president.

IJA-Dreyer-DavidUnited States Chef Justice John Roberts administered the oath of office for President Donald Trump on Jan. 20. There is no law or provision indicating who shall give the presidential oath. But the task seems to fall to the highest available judge, with many interesting exceptions. And it is sometimes given twice just to make sure. Lo and behold, judges and inaugurations provide a fascinating look at American history:

George Washington was sworn in by Robert Livingstone, the highest judge in New York. (There were not yet Supreme Court justices or federal judges.)

John Marshall, chief justice for 34 years, administered the oath nine times — still the standing record — and reportedly never got it wrong. (Unlike Barack Obama’s 2009 oath administered by Chief Justice John Roberts.)

Chester Arthur took office after President James Garfield’s 1881 assassination. He was sworn in by a local New York state trial judge, but took the oath again a few days later from Chief Justice Morrison Waite (apparently fearing that a state judge would not have sufficient swearing power).

William Howard Taft was both president (1909-1913) and chief justice (1921-1930). As president, he appointed more Supreme Court justices (six) than anyone except George Washington, including both his predecessor and successor as chief justice. Even though he joined the Supreme Court only eight years after leaving the presidency, he only served with two of his own appointees. As chief justice, he swore in two presidents — the only former president ever to do that. Weighing in at 300 pounds, Taft clearly had the wherewithal for both jobs.

Calvin Coolidge was back home in Vermont when President Warren Harding suddenly died in 1923. He took the oath from his father, a local justice of the peace and, more importantly, a notary public. Apparently a student of the Arthur administration, Coolidge also took the oath again later, but not from the chief justice. Instead, he quietly sought out a local federal judge, and the second oath was never publicly revealed for many years. Coolidge supposedly could not disappoint his father’s pride, not to mention the precedent of power for notary publics everywhere.

Lyndon Johnson’s 1965 inaugural oath was slightly modified by Chief Justice Earl Warren. Instead of “office of the President of the United States,” as indicated in the Constitution, the chief justice said “office of the Presidency of the United States.” Video footage shows Johnson pausing slightly, but nevertheless reciting it as Warren gives it, not as the Constitution reads, just as President Obama did. But no further oaths were considered necessary since Johnson was well-known for an abundance of swearing.

Perhaps the most famous swearing-in of recent times is, of course, the saddest. On Nov. 22, 1963, Lyndon Johnson took office while still in shock from the assassination of President John F. Kennedy. The local U.S. attorney, Harold “Barefoot” Sanders, himself to later become a legendary Texas federal jurist, was asked to find a judge to swear in Johnson. He called Sarah Hughes, a recent Kennedy appointee to the federal bench. Judge Hughes reportedly asked if anyone had an oath, and if not, she would make one up. As the world now knows, Judge Hughes administered the correct oath to Johnson on Air Force One minutes before he accompanied Kennedy’s body and the widowed First Lady back to Washington, D.C. It was the first and only presidential oath given by a woman. But Sarah Hughes was no stranger to history. She was the first woman state trial judge in Texas, and its first federal district judge to boot. Later, she was a member of the trial panel that first ruled on Roe v. Wade. She remarkably served as a judge, on both state and federal courts, for 50 years.

Judges and inaugurations become historically significant when they can show something about the people involved and provide a more personal history of America. Accordingly, my favorite inauguration is the 1933 oath to, or rather, from Franklin Roosevelt. Chief Justice Charles Evans Hughes read the oath, but Roosevelt waited for the passage to be spoken in its entirety. Then he recited the whole oath flawlessly by heart from start to finish. Never has there been such a face-to-face display of executive branch inaugural force. So let us not forget this awkward balance of power, of which judges share a rightful part, and which is so rarely seen so personally as in an inauguration.•

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Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed are those of the author.

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