The fate of Melville Fuller — or at least the statue representing him near the Kennebec County courthouse — will remain undecided at year’s end.

Despite some fiery testimony at a Dec. 1 online hearing, the Kennebec County Commissioners appear in no hurry to decide the request that the Fuller statue be relocated, initiated by Acting Chief Justice Andrew Mead on behalf of the Maine judiciary.

One can see the judges’ point. In one of the dispute’s several ironies, the Judicial Branch declined to sanction the likeness of the only Mainer to serve as U.S. chief justice, donated by a Fuller descendant in 2013, on new courthouse land. It was then accepted by the county commissioners on county-owned land in front of the old courthouse — what the judges see as the “gateway” to their new Capital Judicial Center, opened two years later.

It’s a highly visible location on State Street, but until the Black Lives Matter protests last summer, it occasioned little public comment. After that, there were demonstrations and, at the online hearing, an inflammatory remark that, rather than removal, “We should destroy it and melt it down and make plumbing fittings from it.”

Some of Justice Fuller’s supporters seemed equally out of tune. One local attorney suggested the whole theory of “systemic racism” was “Marxist” in origin, foisted upon unsuspecting Mainers by the Maine Bar Association.

Kennebec Probate Judge Libby Mitchell, a former House speaker and Senate president, was far more measured, but agreed with Justice Mead that Fuller “does not need to be the entry point to the justice system that we have in our state.” The singularity of the statute — there are apparently none comparable in any of Maine’s 16 counties — is what drives this argument.

In some statue controversies, there’s a clear-cut case. Jefferson Davis, the Confederate president who tried to split the union and preserve slavery, long overstayed his welcome; Bowdoin College was undoubtedly correct in removing his plaque and sending it to a museum.

That’s an idea endorsed by Mitchell, and Augusta City Councilor Linda Conti — a Maine assistant attorney general — who suggested the Kennebec Historical Society, a half-mile up Winthrop Street.

Yet Maine judges, and other critics, have focused solely on a single case in which Fuller, chief justice for 22 years (1888-1910), has become indelibly associated: Plessy v. Ferguson, which sanctioned “separate but equal” facilities for whites and blacks in 1896. Fuller sided with the majority, but offered no opinion.

Plessy was overturned half a century later by Brown v. Board of Education, setting off a renewed struggle for racial equality that has lasted to the present moment — another half century on, many school systems are more segregated than ever, despite the promise of Brown.

Fuller’s full record, honestly considered, may surprise his critics. The lone dissenter in Plessy, John Harlan, is rightly lionized for insisting the 13th, 14th and 15th amendments — freeing the slaves, providing for “due process of law,” and guaranteeing the black man’s right to vote — shouldn’t be interpreted away by the high court.

Yet Harlan failed to support the rights of Chinese immigrants in cases where Fuller sought to uphold them, and Fuller also dissented from Congress’s anti-polygamy confiscation of Mormon Church property. These details were provided in testimony by retired Prof. James Ely, a scholar who devoted much of his career to studying Fuller’s time on the bench.

Among the longest-serving chief justices, Fuller was famously energetic, with the Encyclopedia Britannica praising his “amiability, impartiality, and rare administrative skill.” It was Fuller who convinced Congress to authorize nine Courts of Appeal, without which our national judicial system could hardly function.

By contrast, consider the lamentable judicial career of Nathan Clifford, the only other Mainer to serve on the U.S. Supreme Court (1858-1881.) A Jacksonian Democrat, former Maine House speaker and congressman, Clifford was appointed by James Buchanan just after the Dred Scott decision upholding the Fugitive Slave Act, and correctly seen as a southern sympathizer.

Clifford’s consistent votes, as the Supreme Court dismantled what remained of Reconstruction, can accurately be seen as racist. He clung to his seat, in what his colleagues termed a state of “imbecility,” hoping a Democratic president might appoint his successor; he failed.

Fortunately, no one is suggesting erecting a monument to Nathan Clifford anywhere in Maine.

As for Melville Fuller, perhaps the apt verdict is one British juries can render, rather than guilt or innocence: “case not proven.” Should more monuments to the judicial past be erected, rather than consigning this one to limbo?

In less heated moments, we may discover a better answer.

Douglas Rooks, a Maine editor, reporter, opinion writer and author for 36 years, has published books about George Mitchell, and the Maine Democratic Party. He welcomes comment at: [email protected] 


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