The Republicans Party is moving swiftly to nominate a new U. S. Supreme Court Justice. There was no such rush in 2016, when Democrat Barack Obama was president and Senate Majority Leader Mitch McConnell piously proclaimed, “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.”
This year’s decision invites eventual payback from Democrats, perhaps by refusing to confirm a Republican president’s nominees or by trying to increase the number of justices on the court if Joe Biden gets elected in November.
Whatever happens in the coming weeks, both parties can take solace in knowing that this isn’t the first end-of-term battle over a Supreme Court position. Nor will it be the nastiest such battle.
The current drama, in fact, does not compare to President John Adams’ decision to nominate a chief justice in January 1801 — after the November 1800 presidential election, which Adams lost to Thomas Jefferson, was over.
Just like this year, when Justice Ruth Bader Ginsburg died, the 1801 court opening was unexpected. Chief Justice Oliver Ellsworth told Adams he was retiring for health reasons.
Adams, a member of the Federalist party, which favored a strong central government, did not want Jefferson’s citizen-focused Democratic-Republican Party putting someone of its philosophy on the six-member court.
So Adams, about six weeks before Jefferson was to take office in March 1801, nominated his secretary of state for chief justice. The Senate, also controlled by Federalists, confirmed the nomination just a week later.
Adams and the Feds further stuck it to Jefferson by eliminating a Supreme Court seat so that Jefferson couldn’t appoint anyone the next time there was a vacancy. They also approved legislation that added 16 federal judges and other judicial appointees, all with lifetime terms.
Jefferson was furious. Even though he had been Adams’ vice president, the two men despised each other. (The two Founding Fathers did not patch things up for another 20 years.)
To make the story even better, Jefferson and the new chief justice were cousins, but disagreed politically. The chief justice wrote Alexander Hamilton in 1801 that Jefferson’s views made him unfit for the presidency.
But time was Jefferson’s ally. His party took control of Congress in 1801, and the next year it repealed the law that created the new judicial positions. They restored the dropped Supreme Court seat and even added one more.
In another effort to open a seat on the Supreme Court and punish a political opponent, Jefferson championed the impeachment of a justice, Samuel Chase — another signer of the Declaration of Independence — after Chase criticized the Democratic-Republicans for repealing the 1801 judiciary law.
The Senate tried Chase, the only justice ever to be impeached, in 1804. Vice President Aaron Burr presided, though he still faced the possibility of murder charges for having killed Hamilton in a duel. Though Jefferson’s party had a majority in the Senate, Chase was acquitted.
The history lesson is this: Both sides acted rashly in 1801. They behaved more like mobsters than leaders. They made politics personal.
America’s experiment in representative government was only a decade old. Small-minded shenanigans like these could have undone the new nation. Two Founders who put their lives on the line by declaring independence in 1776 also put the peaceful transfer of American government power at risk 25 years later.
But the country got through it. Things worked out rather well. Democrats on the losing side of this year’s power play should remember that when they plot revenge against Republicans (although they surely won’t).
The best part of the story was the new chief justice. It was John Marshall, whom you may remember from high school civics classes. He made the Supreme Court an equal branch of government and affirmed the cherished American principle of respect for the rule of law.
Adams got it right. It was a superb long-term tradeoff for his last-minute nomination.
