A real test for the President's Illinois friendships came when a vacancy appeared on the Supreme Court for the district that included Illinois. Both Orville H. Browning and David Davis began angling for the appointment in the spring of 1861 when Justice John McLean on April 4. U.S. District Court Judge Thomas Drummond, another candidate for the post, was also a friend of President Lincoln and had presided over trials at which Mr. Lincoln had been a counsel. Drummond was more circumspect in his petitioning for the job - working through Congressman Elihu B. Washburne. He wrote Washburne that if he was not appointed, he would be grieved "to find I did not stand so high in his good opinion as I hoped."1
Browning rushed to put forward his name, writing President Lincoln: "It is not without a great deal of embarrassment and hesitation that I have determined upon this course, but, having determined upon it, I do not propose to offer any apology for address in myself to the task. You know me about as well as I know myself; and in regards to my fitness for the office you know me better - for you occupy a far better stand point for the formation of a fair and impartial judgment than I do If, then, you shall think me competent to the duties of the office, and shall be at all inclined to gratify in any thing, I say frankly, and without any sort of disguise or affectation, that there is nothing in your power to do for me which would gratify me so much as this. It is an office peculiarly adapted to my tastes, and the faithful and honest performance of the duties of which would be my highest pride and ambition."2
Browning's wife confessed that she had badgered her husband to write President Lincoln: "He wrote you on the Subject at my earnest Solicitations. he said it pained him to do so, for fear it might embarrass you in filling the vacancy," she wrote President Lincoln. Mrs. Browning made a more forceful case for her husband than did he - while being sure to stab any opponents of her husband's as well:
Mr Lincoln, I do not ask this, because I am thirsting for distinction, far from it! I ask it, because I know my husband to be one of the wisest best men in the Nation I know him to be, an unselfish Patriot, & not a miserable officer Seeker. I ask it, (with pain and mortification I say it) because I know he has never been appreciated, owing in part, to his great modesty, and unselfishness in not pushing himself forward. I ask it at your hands Sir because I know, there has always been a class of cold, heartless, Politicians, in Illinois, that have left no stone unturned, to defeat him, and prevent his taking that position that his talents and integrity so justly entitles him to. It is truely humiliating to see men, that labored with the Democratic party in Illinois; through all the long, dark days of their corrupt reign; now, exalted to high and responsible Situations in the Republican ranks; men, that gave all their talents, and influence to demoralizing every department of the Government, at a time, when my husband was devoting all of his energys to the upbuilding of a party, that he believed could alone save our beloved Country from ruin; and this he did Mr Lincoln; not for office but from the purest patriotism that ever warmed an American heart. I could write volumes, numerating the Sacrifices Mr Browning has made for his Country; but I know you are Sick of Such; and I will Spare the infliction. I feel a great delicacy even to allude to such things; I mention it, mearly [sic] to remind you that men, that have done more to injure, than to bless, our Country, are the very ones that are the most opposed to Mr Brownings geting the only appointment, he has ever really desired, or asked.3
Mrs. Browning did not reserve all her knives for fellow Illinoisans. She added: "I know men in Indiana (that horse leech State always crying, give! give!) want the office I know men in Ohio (that have had it for thirty years) want it." While Browning's wife also attempted to prevail on presidential sentiments of friendship, Davis's more numerous friends attempted to overwhelm the president with their petitions. Because Stephen Douglas died two months after Justice McLean, Browning got a new job - in the U.S. Senate. Meanwhile, President Lincoln did not rush to make the judicial appointment - indeed he delayed it to the point of embarrassment.
Leonard Swett, a close ally of David Davis, wrote: "Mr Browning had the advantage that Lincoln was new in his seat, and Senators were August personages; and, being in the Senate and a most courteous and able gentleman, Mr. Browning succeeded in securing nearly all the senatorial strength, and Mr. Lincoln was nearly swept off his feet by the current of influence. Davis' supporters were the circuit lawyers mainly in the eastern and central part of the State. These lawyers were at home, and their presence was not a living force felt constantly by the President at Washington."4
According to David M. Silver, author of Lincoln's Supreme Court, "President Lincoln did have a dilemma to solve: he had been closely associated with Browning and Davis, and both men could make strong claims upon him. Probably the view expressed by Joseph Medill, which was the view of the Radicals, strongly influenced Lincoln as he watched Browning act out his senatorial role. Browning became less an administration stalwart than could have been expected. If Browning hesitated as a Senator to support the administration, would he prove more devoted to Lincoln as a member of the Supreme Court? There was some chance, also, that if Browning resigned his senatorship, Illinois would replace him with a Democrat."5 The dilemma was reflected in an incident in early August 1861 reported by Henry C. Whitney, a friend who was visiting Mr. Lincoln in the White House: "I seized a good oppertunity to say of Judge Davis - 'I expect you'll appoint him Supreme Judge - anyway' - and he at once grew sad and said nothing until I changed the subject."6
Senator Browning was frequently at the White House while Davis had judicial responsibilities back in Illinois. Davis had a loyal friend, however, in U.S. Marshal Ward Hill Lamon, based in Washington. He had an even more dedicated friend in Mr. Lincoln's friend Leonard Swett, who campaigned for the Davis nomination in person and by letter. In January 1862, Swett secured a letter from John T. Stuart, Mr. Lincoln's first law partner, which proclaimed that a Davis appointment would be gratifying, "especially to the circle of your old personal friends."7 Since Stuart was a Democrat, his endorsement suggested that Davis' backing crossed partisan lines.
Davis's friends forcefully tried to call in the debt they thought the President owed Davis for leading the convention effort that won Mr. Lincoln the Republican presidential nomination. "Friends of Judge Davis demanded the appointment as a matter of justice and reward; they admitted frankly their estimate of Lincoln's indebtedness to Davis," wrote historian Silver. "Upon the death of Justice [John] McLean, Lawrence Weldon, who had been appointed by Lincoln to be federal district attorney for the southern district of Illinois, asked why Judge Davis should not be appointed, 'especially when he was so instrumental in giving position to him who now holds the matter in the hollow of his hand?' Weldon argued that Lincoln could 'do nothing less than to tender' the justiceship to Davis."8
The assault from mutual friends was unrelenting. They made the appointment a matter of political indebtedness which could not be ignored. "Permit us to express our Decided Preference for Hon D. Davis for the Office of Supreme Judge over the claims of Hon O. H. Browning or any other applicant in the field or within our knowledge with the ex[c]eption of Hon S. T. Logan. With him or Judge Davis we would be perfectly satisfied they both being to our minds competent and reliable gentleman," wrote State Auditor Jesse K Dubois and State Treasurer William Butler.9 In January, Leonard Swett sent a petition to the President with this note:
I take the liberty of enclosing to you a recommendation in behalf of Judge Davis, signed by most of the prominent men of the present state convention of Illinois.
Fellow Illinois attorney John M. Scott suggested that the Davis appointment was a matter of justice which the public expected. Furthermore, the appointment of Browning was not to be expected because "to appoint one not heretofore your most steadfast friend with the hope of making him such is neither wise in politics or morals."11 There is evidence from Henry C. Whitney that President Lincoln had been alienated by Davis's own pressure for others and himself early in the Administration. Whitney said he never delivered a message Davis had given him to deliver to President Lincoln but he did tell him: "Davis thinks you ought to make him a Supreme Judge & it looks as if you ought to do it." Mr. Lincoln did not reply - leading Whitney to believe that "he had not the slightest idea of doing so then."12
Swett became the key to Davis's appointment. "I was then living at Bloomington, and met Judge Davis every day. As months elapsed we used to get word from Washington in reference to the condition of things; finally, one day word came that Lincoln had said, "I do not know what I may do when the times comes, but there has never been a day when if I had to act I should not have appointed Browning." Judge Davis, General [William W.] Orme, and myself held a consultation in my law-office at Bloomington. We decided that the remark was too Lincolnian to be mistaken and no man but he could have put the situation so quaintly. We decided also that the appointment was gone, and sat there glum over the situation." Swett then announced that he was packing to go to Washington to make one last appeal to the President.
Swett met with the President and presented all his arguments - particularly the debt that he owed to Judge Davis and the other lawyers of the Eighth Circuit in winning his nomination in 1860. President Lincoln acknowledged his arguments but made no commitment. Swett returns to Willard's Hotel where he wrote President Lincoln a letter disclaiming all claims for patronage if the Davis appointment were made. He went back to the White House where he read his missive to the President:
I want to say one more word. Some friends of mine have asked some patronage for me I have thought you might say if Davis receives this place Swett or his friends will next say he must have something. I have no such thoughts The truth is Davis is my friend, and if you can honor him I will consider it a favor to me and you can plead what is done for him as an estoppel to me and my friends at any time you choose & the plea will be honored.13
President Lincoln replied: "If you mean that among friends as it reads I will take it and make the appointment."14 Henry C. Whitney was convinced that Swett turned the tide with his "wonderful persuasiv[e] powers" and "thus Swett rescued Davis from utter oblivion and made him a great man."15
Judge Davis was informed of his pending appointment in the summer of 1862 and officially appointed on October 17.