Last night, in the vice presidential debate, Senator Kamala Harris cited Abraham Lincoln as an example of the wisdom of waiting to make a Supreme Court nomination. She pointed out that when Chief Justice Roger Taney died, on October 12, 1864, Lincoln did not immediately nominate Taney’s successor. Lincoln waited, until after the presidential election on November 8, 1864, indeed waited until Congress gathered in Washington, before nominating Salmon P. Chase as chief justice on December 6, 1864.

Here is what Harris said last night: “In 1864 … Abraham Lincoln was up for reelection. And it was 27 days before the election. And a seat became open on the United States Supreme Court. Abraham Lincoln’s party was in charge not only of the White House but the Senate. But Honest Abe said, ‘It’s not the right thing to do. The American people deserve to make the decision about who will be the next president of the United States, and then that person will be able to select who will serve on the highest court of the land.’”

This morning, in the Washington Post, there was an article about this, correcting Harris to some extent. Lincoln did wait, but not really for the election. He waited in order to hear from the supporters of various candidates for the position: Salmon Chase, William Evarts, Montgomery Blair and others. The first version of the Post article called him Samuel Chase, raising my blood pressure at the breakfast table. I sent in a comment and the error has been fixed.

The Post article misses, I think, a couple of points. First, although the presidential election was not until November 1864, the congressional elections in several states were held on the same day that Taney died. As the results in those key states, including Ohio and Pennsylvania, were counted, it was almost certain that Lincoln would be elected president. So in a sense the election was half-over by the time Lincoln even started to think about Taney’s successor.

Second, more important, if McClellan had somehow defeated Lincoln in the election of 1864, Lincoln would not have waited and allowed McClellan to make the nomination for chief justice when he became president, in March 1865. Lincoln would almost surely have nominated someone, probably Chase, and the Senate would have confirmed him, in late 1864 or early 1865.

So Harris was completely wrong, in my view, in saying that Lincoln believed that whoever was elected in November should make the choice of the next chief justice. And of course her “quote” from Lincoln is not a quote from Lincoln at all; he never said anything like that. Lincoln fully intended, I think, to make the nomination, he just wanted to wait to hear about the pros and cons of particular choices for chief justice.

If Lincoln had made a post-defeat nomination of Chase, and the Senate confirmed him, they would simply have been following the example of John Adams and the Federalist Senate in January 1801. Jefferson had already defeated Adams in the bitter 1800 presidential campaign when Adams nominated, and the Senate easily confirmed, our greatest chief justice, John Marshall.

Third, more debatable, people did not view the Supreme Court in 1864 as they do today, as having Democratic justices and Republican justices. They viewed the Supreme Court as composed of justices, with different regional and political backgrounds, to be sure, but without a predictable left-right pattern. Democratic papers did not argue, on the death of Taney in October 1864, that Lincoln should delay the nomination, to allow a Democratic president to nominate a Democratic chief justice. When Chase was nominated and confirmed, on the same day, in December 1864, Democratic papers did not moan that Lincoln had nominated a Republican. Even the New York World, the nation’s leading Democratic paper, commented that Chase would make a good chief justice for he was “a studious man of great capacity for sustained labor.”

There was of course one great legal, political, moral issue that the Supreme Court would face, slavery. And there was a world of difference on this issue between Chief Justice Roger Taney, who declared in the Dred Scott opinion that blacks could never be American citizens, and Chief Justice Salmon Chase, who was one of the most ardent and important leaders of the antislavery movement during the two decades before the Civil War. Lincoln was well aware of Chase’s views on black rights—the two men had debated the issues often during the Civil War—with Chase consistently urging Lincoln to move faster to free the slaves, to enlist them in the Army, to allow them to vote in the southern states.

So there was a political aspect to Lincoln’s appointment of Chase. McClellan would never have chosen Chase—he would have chosen some compromise candidate acceptable to the Republican Senate. But people did not believe, in 1864, that Chase would always vote for Republican policies on the Supreme Court. People just did not think of the Court in those political terms at the time.



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