Born: Monday, October 25th, 1875
Died: Sunday, July 14th, 1957
Birthplace: Seattle, Washington
Religion: Methodist
Education: University of Washington (1891)
Stanford College, B.A. (1895)
Columbia Law School, LL.B. (1900)
Career: Prosecuting Attorney (1905-1909)
Superior Court (1912-1918)
President's Commission on Law Observances and Enforcement (1929-1931)
Served: Saturday, March 30th, 1918 to Monday, April 16th, 1928
Chief Justice: Monday, January 10th, 1927 to Monday, April 16th, 1928
Political Party: Republican
Appointing Governor: Lister (Democrat)
Kenneth Mackintosh was the first member of the Washington Supreme Court born in the state. His parents were western Washington pioneers. His mother, Elizabeth Peebles, came from New York in 1865 to teach school in the little settlement of CIaquato, Lewis County. She was the first woman to hold an official position in the territorial legislature and was a delegate to several Republican territorial conventions. Judge Mackintosh’s father came early to Seattle and developed interests in lumber, saw mills, real estate, and mining. The judge learned politics from his mother and business acumen from his father.Mackintosh attended common schools in Seattle and, at the age of sixteen, enrolled at the University of Washington. After a year there he transferred to the newly opened Stanford College, where he graduated with a B.A. in 1895. While at Stanford, Mackintosh became a close friend of classmate Herbert Hoover. Because of the “financial panic” of the early 1890s, Mackintosh had to seek employment before completing his education. He started as a hard rock miner, sorting ore from large dumps of excavated rock. Within two years he became superintendent of the Triumph Mine in Mariposa County, California. In 1897 Mackintosh quit the mine and enrolled in Columbia Law School in New York. He excelled in his studies, won a scholarship for his second year, and served a charter membership on the Columbia Law Review in his senior year. Upon graduation in 1900 Mackintosh stayed in New York long enough to be admitted to the bar, and then promptly returned to Seattle to join the law firm of Burke, Shepard, and McGilvra. In 1902 he left the firm and practiced alone for two years.
Mackintosh’s public career began at the age of twenty-nine with his election as prosecuting attorney for King County. He served two terms, 1905-1909. His administration became known for the seriousness of its indictments – he won more than ninety percent of all cases brought to trial – and for hiring a group of bright young deputies who subsequently went on to outstanding public and professional careers. They included George F. Vanderveer, John F. Miller, John H. Perry, and the county’s first woman deputy, who later became the first woman in the state to serve as justice of the peace, Reah M. Whitehead.
Mackintosh returned to private practice upon completing his second term as prosecutor in 1909. Elected to the Seattle Municipal Commission, charged with planning Seattle’s growth, he later served as its president.
In 1912 Governor Marion E. Hay appointed John F. Main to fill the short term remaining in Judge Ralph Dunbar’s supreme court position. This left Main’s superior court position vacant, and Hay appointed Mackintosh. Mackintosh won affirmation at the ballot box the next year and reelection in 1916. While on the King County trial bench he helped introduce the presiding judge system to deal with crowded dockets more effectively. On April 15, 1918, Governor Ernest Lister, a Democrat, appointed Mackintosh, a Republican, to fill the vacancy left on the supreme court by the death of Judge George Morris. By appointing Mackintosh to the supreme court, Lister was able to select a long-time political ally to the superior court vacancy.
Mackintosh won election to the high court in 1918, running unopposed. In 1922 he led the judicial ticket with more than 138,000 votes. While on the supreme court Mackintosh helped create the judicial council and, as chief justice, organized the court to dispose of all cases before a new term began. Judge Mackintosh joined the conservative wing of the high bench, which tended to favor business, property rights, and the prosecution in criminal cases.
On April 16, 1928, ten years after his court appointment, the judge resigned to seek the Republican nomination as U. S. Senator. He easily won the party’s nomination and faced incumbent C. C. Dill in November. Presidential candidate and old friend Herbert Hoover endorsed the judge, but to no avail. The incumbent Dill edged Mackintosh. Although prominently mentioned as a candidate for other partisan positions, the senate contest proved to be Mackintosh’s last political race. He joined the firm of W. V. Tanner and John P. Garvin in Seattle late in 1928.
President Hoover did not forget his Stanford classmate. In May 1929 he appointed Mackintosh to the President’s National Commission on Law Observance and Enforcement, known as the Wickersham Commission. The commission’s prime responsibility was to recommend the proper enforcement of prohibition. Upon learning of his appointment, Judge Mackintosh indicated he would take a broad view of the tasks facing the commission:
The main problem before the country is law enforcement, to remove conditions that allow murder and serious crime to go unpunished and to make life and property safer. Prohibition is not the main question. It is only incidental.
In January 1931, the Wickersham Commission recommended enforcing the existing law, but also suggested that if the results were not satisfactory, revision of the Eighteenth Amendment might be necessary. Mackintosh, however, believed that enforcement of the amendment as envisioned by its framers was impossible.
While the commission conducted its study, rumors circulated that Hoover was considering Mackintosh for appointment to the Ninth Circuit Court of Appeals to fill Frank Rudkin’s position. Although very interested in the appointment, Mackintosh felt compelled to maintain a low profile until the commission issued its report. Despite objections from organized labor, President Hoover nominated Mackintosh to the court of appeals on January 8, 1932. In March, a subcommittee of the Senate Judiciary Committee, chaired by Senator John J. Blaine, began hearings on the nomination. A representative of the American Federation of Labor testified against the judge. Labor worried “because of opinions written by Mackintosh when a member of the Supreme Court of Washington State … It is feared that as a federal judge he would hold that picketing is unlawful.” Other issues attracted public attention. Mackintosh had written a lawyer friend in Centralia praising him and the citizens of the area for the stand they took in the Industrial Workers of the World riots in which several “wobblies” were killed in 1919. Mackintosh claimed he merely lauded those who stood for enforcement of the law.
Some of the judge’s critics also brought up the case of a twelve-year-old boy given a life sentence for murder. Mackintosh reportedly said the boy should be hanged. Mackintosh responded that he had been misunderstood: “All I intended to convey was that hanging would be the ultimate fate of the boy if he received a life sentence. I was entirely misunderstood. I never had any idea that in the immediate case the boy should be hanged.”
Others testifying and sending letters to Congress raised minor concerns, but labor presented the most serious challenge. As the Seattle Times reported: “It appears that the only objection likely to receive serious consideration by the committee is that of labor.”
The subcommittee failed to make its recommendation to the full senate before adjournment. In the November 1932 elections, Hoover and the Republicans lost, assuring the defeat of any lame duck Hoover appointments. Although the president renewed his nomination of Mackintosh before leaving office, the senate failed to act, saving appointments for the new Democratic administration.
After his failure to gain confirmation to the federal bench, Mackintosh returned to Seattle and private practice. He expanded his large real estate holdings in the city and remained active in civic affairs.
Judge Mackintosh was a Shriner, a Mason, and a member of the Elks, Eagles, and Moose lodges as well as of the Ancient Order of United Workmen and the Madrona Council of the Royal Arcanum. He founded the Native Sons of Washington and belonged to the Rainier Club, College Club, Seattle Golf Club, and the Scandinavian Fraternity of America.
Francisca Arques, also a Stanford graduate, married Mackintosh in San Jose, California, in 1908. They had one son, Angus. The judge died in Seattle on July 14, 1957 at the age of eighty-one.
Selected References
Memorial services, Washington Reports, vol. 52, 2d (1958), pp. xvii-xxv; Lloyd Spencer and Lancaster Pollard, A History of the State of Washington, vol. 3 (1937), p. 165; H. James Boswell, American Blue Book: Western Washington (1922), p. 20; C. W. Taylor, Eminent Judges and Lawyers of the Northwest (1954), p. 177; Seattle Times, 31 Mar. 1918.
The preceding biography is from Charles Sheldon's The Washington High Bench: A Biographical History of the State Supreme Court, 1889-1991, © 1992 by the Board of Regents of Washington State University. Reprinted here with permission and licensed to the public under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License by The Temple of Justice Project.
