Thursday, March 30, 2017

Adapting to Changing Technologies

Rossville, Illinois Rail Road Station
Every generation must adapt to changing technologies.  When the railroad came to Rossville, IL Isaac Werner was the proprietor of a drug store, and he opposed its arrival.  In 1871, he had joined other merchants in arguing that the town was not yet ready for a railroad.  He believed that the workers laying the track would bring a disreputable class of men to the town, and the bonds that were needed to pay for the railroad's arrival would be a burdensome expense without the promised benefits. However, the farmers around Rossville nearly all supported the railroad, eager for a way to get their crops to markets, just as Isaac did a decade or so later, when he was marketing his own crops in Kansas.

New technologies nearly always result in conflicting opinions about their worth, opinions that are often generational.  The present technological changes are no exception, and this blog shares some that concern me.

As a writer, I pay particular attention to changes in book marketing, legal protections for authors, and readership trends.  Past blogs have bemoaned the drop in book readership and the importance of encouraging the habit of reading in our children.  On the Madison Building of the Library of Congress is inscribed the following quote from James Madison:  "Knowledge will forever govern ignorance: and a people who mean to be their own Governours, must arm themselves with the power which knowledge gives."
Stereoscope for viewing 3-D Images

In the most recent issue of my writers' bulletin, the Executive Director expressed her concern about the unsettled state of distrust and accusations about fake news, altnews, and "alternative facts." She described how including copyright law in the Constitution was a measure of how much the Founding Fathers valued cultivating an American "...class of writers, thinkers, and artists, not beholden to government or private patronage." She predicted that as we become less confident in the accuracy of newspapers and television news, people may turn to well-researched books, vetted by reputable publishers, for accurate information.  Her closing words to authors were "your work is more important than ever."  I would like to think so, but only if more people read the books that are written!

In that same issue a writer shared a troubling discovery.  Because both the author and her assistant had purchased a used copy of the same book from the same online bookseller at about the same time, they discovered that each of them had been shown a different list of the same book available for purchase.  The graduate student with a history of spending less for the books she bought from the online bookseller was shown less expensive books, while the author with a history of buying more expensive books if she needed them for her research was shown a different list of the same title at higher prices.  The author continued to check the online bookseller for several days without buying, and eventually a cheap paperback copy appeared on the list, with the more expensive books omitted, leading the author to assume that when she didn't buy a higher priced copy, the seller showed her a cheaper choice. The bottom line to the story is that apparently algorithms had been used to track both of their purchasing habits, and the selections each was shown were modified, according to what each of them might be willing to pay, cheaper prices for the graduate student and more expensive prices for the author.

'Modern' replacement for the scythe
It had never occurred to me that with my own online used book buying my purchasing habits might be followed or that an online seller might offer books at different prices based on my apparent willingness to pay.  I frequently shop online for used and out-of-print books, and I bought several books that were titles Isaac Werner had owned, choosing the oldest editions I could find in an attempt to replicate what Isaac would have been reading.  Algorithms!  I had never heard of that!!  I don't know if all online used booksellers engage in this practice, but this very popular one--which sells both new and used books-- apparently does.

Most of us are willing to pay the market price for what we need or want, but are we willing to pay a different price to get the same thing?

Recently my husband and I were watching the Academy Awards and I was surprised to hear Amazon mentioned several times in connection with the making of films nominated for awards.  The special Hollywood edition of Vanity Fair had an article titled "That's All Folks!" which offered comments of how technologies are changing entertainment, using the music industry as an early example of CD sales declining as younger buyers preferred downloading a single song that they liked rather than buying the complete album, getting a single song for a dollar or so versus an album for about twenty dollars. With the change in buying habits, profits dropped, and according to the article, the music industry has shrunk to about half its former size in just a decade.

The article continued using print news as another example, quoting newspaper advertising revenues as having fallen from $67 billion in 2000 to $19.9 billion in 2014.  No wonder newspapers are failing and surviving newspapers are shrinking in content.  With my own awareness of merged and failed publishing houses, and some universities downsizing or eliminating their university presses, I was already familiar with the changes in the publishing world, which the article cited next, noting that many people prefer paying $9.99 for a digital book rather than $25. for the hardcover.

Antique still Camera
But, the main subject of the article was the movies, which indicated that movie theater attendance is at a 19-year low, and between 2007 and 2011 overall profits for the big-5 movie studios fell by 40%.  According to the article, 70% of box office comes from abroad, which impacts the type of movies being made.  In addition, the big studios are facing competition from companies from outside the entertainment industry.

According to the article, in the 1950s movies were the third largest retail business in the U.S. at a time when people looked forward to going out to the movies.  Now the trend is toward enjoying entertainment in our homes.  Theaters are much more expensive for traditional studios to build and maintain than the cost to new companies entering the business and catering to those who would rather stay home and have a movie delivered to their TV, laptop, or phone.  Only if enough people want to go to theaters to watch movies will it be economically feasible for traditional movies intended to be shown on the big screens in theaters to continue to be made.  Otherwise, theaters may give way to the new technology bringing movies to our homes.

Ironically, theaters seem to be countering this trend by making the theater experience more 'home-like,' with reclining seats and food delivered to trays built into the seats--just like kicking back at home with a sandwich and a cold drink to watch a movie on the large screen of your TV!  

Even more futuristic to my way of thinking is the technology that can create human images.  A recent television program showed the technology that allowed one of the main actors to appear in a popular movie series long after he had died.  The face of Peter Cushing was superimposed on another actor's body in Rogue One.  A man who has done special effects for several films is quoted in the Vanity Fair article as predicting that by 2022 graphics will be "indistingishable from reality."

At an American Bar Association meeting in Atlanta that I attended years ago, I learned about digital cameras for the first time.  I knew by heart the questions necessary to authenticate photographs I wanted to have introduced into evidence during a trial, and I couldn't imagine how digital photographs could be used as evidence, with their capacity for easy alteration.  Technology will not stand still, and we must adapt, but I do worry about how difficult reality and truth will be to ascertain in a world already tending toward "alternate facts."

Chicken Little thinks the sky is falling!  (antique book)
In the early 1880s a settler could claim a quarter-section of 180 acres and keep a cow and raise crops to feed his family, and maybe produce enough to sell some wheat or corn or potatoes in town for a little extra cash.  In a decade or so those farmers had needed to expand their farms if they were to survive.  Isaac Werner invented a 3-horse cultivator that allowed him to plow more ground in less time, proud that he had created something that would allow one farmer to buy or rent more ground, raise more crops, and improve his standard of living.  Isaac never mentioned in his journal any awareness that his cultivator might also displace small farmers and could reduce the number of farmers able to survive in his community.  Technology will happen and life will change.  It is all the more reason for us and the generations that follow to see education as an ongoing responsibility.  The capacity to hood-wink and mislead is only growing, and we must be prepared not to be fooled.  As journalist Dan Rather wrote in reply to the notion of "alternate facts:"  "Facts and the truth are not partisan.  They are the bedrock of our democracy.  And you are either... with our Constitution, our history, and the future of our nation, or you are against it.  Everyone must answer that question."

It has been my premise since the first posting of this blog that we have much to learn from history, and I still believe that is true.  Nearly every generation has had a Chicken Little 'the sky is falling' moment, and we must not view technology as the enemy.  However, we must recognize that the potential of technology presents new challenges along with its benefits and we must rise to the challenge or fail as never before.`

Thursday, March 23, 2017

Freedom of Speech and Accurate News

Imagine living in a time and place before internet, before television, even before radio.  Then, imagine you were living on a homestead claim far from the nearest town.  How did news spread?  In Isaac's community it spread by word of mouth and by newspaper.  In the rural community where Isaac lived he had many neighbors within a few minute's walk, and the 'grape-vine' was quite effective.  In addition, there was a rural mail carrier to deliver letters and newspapers, as well as the farming journals to which Isaac subscribed.  Freedom of speech and the press were alive and well!

Yet, because of such Constitutional protection, the accuracy of what was published was subject to little or no regulation.  Newspapers, not to mention Isaac's local neighbors, had their own bias which colored their news.  On the other hand, the close proximity of neighbors provided not only the rapid disbursement of gossip and rumor but also the opportunity for what is sometimes called "a marketplace of ideas," the result of many diverse opinions allowing a collective consensus to be reached, the theory being that neighborhood conversations will begin to form a generally accepted point of view, wise or foolish as it may be.  In most communities, including Isaac's own, respected leaders emerge, and their comments carry more weight, sometimes so much weight that no opposing opinions gain any traction.  Yet, then as now, freedom of speech allows anyone with an opposing point of view to express it, if he dares.

When the progressive movement reached Isaac's community, the strongly Republican neighborhood split, about half adhering to their Republican opinions but the other half (drawn from both old parties but particularly former Democrats) giving Populism a try.  In one 7th district state election two popular men ran against each other, and the People's Party candidate won locally by a single vote, neighbors almost equally divided.  There was extensive back-and-forth between the St. John News and the County Capital during the campaigning!

The written press of Isaac's time did not worry too much about balanced reporting, and their bias was clear.  However, there were many newspapers, and if one got its facts wrong there was probably another one who would call them out.  The government stayed out of it!

Edward R. Murrow
With the arrival of radio and television, it was necessary for stations to acquire broadcasting licenses, and the airways did not allow for the same proliferation of stations that news print had allowed.  The Federal Communication Commission (FCC) decided that it was important that stations given broadcasting licenses be honest, equitable, and balanced in their reporting.  In 1949 they imposed the Fairness Doctrine.  Broadcast license holders were required to present controversial issues of public importance to accommodate an informed public and those issues had to be presented accurately, fairly, and in a balanced manner.  The information could be presented through news, editorials, or shows, and opposing views did not have to receive equal time, (the equal time requirement relates to political candidates), but the purpose was to give the public a diversity of information.  Although the United States Supreme Court had ruled favorably on the Constitutionality of the Fairness Doctrine, in 1987 the FCC abolished the doctrine.  It is widely believed that Ronald Reagan instigated the revocation, and three of the four sitting FCC commissioners at the time of revocation had been named by President Reagan, the fourth having been named by Richard Nixon.

Subsequent efforts to reinstate the Fairness Doctrine have all failed, one effort in 2007 having been opposed in the House by the current Vice-President, Mike Pence; however, President Obama also opposed the revival of the Doctrine during his time in office, and it was during Obama's presidency  that the language that implemented the old Fairness Doctrine was removed during a broader editing of the Federal Register.  The abandonment of the Fairness Doctrine has not been decided by which party occupied the White House.

It is widely agreed that the demise of the Fairness Doctrine seems associated with the political polarization in the United States, if not a contributing factor.  Is this conclusion reasonable?  In Isaac's time there was no Fairness Doctrine, and even when the Fairness Doctrine existed, it did not apply to newspapers.  Was the doctrine really all that important?

Journalism is a profession, and reputable journalists strive for accuracy in delivering the news.  In modern times, the traditional thinking has been that people want to know the truth, and careless or one-sided coverage of the news would result in loss of viewership and subscribers.  That economic reality was assumed to keep reporters honest, even if their sense of professional ethics did not.

Recently, however, the question has become whether it is truth or affirmation of viewers' bias which determines economic success for the news media.  The importance of a free and independent press capable of delivering accurate news to Americans has been considered so important that the press is sometimes called the "Fourth Branch" of our government.  Presidents of both parties have had their quarrels with the news but have also used the media to their advantage at times.  Presidents have always understood the important role of the press in our government, but perhaps that role has never been more debated than it is today.

Next week's blog will take a look at just how complicated changing technologies are making things.

Thursday, March 16, 2017

The Founding Fathers & Freedom of the Press

It may be remembered from last week's post that George Washington considered Freedom of Speech so important that without it, he feared Americans would be rendered "dumb and silent."  I'm not sure whether he used the term "dumb" to mean 'without speech' or 'stupid.'  Either way, it was clear that Washington regarded freedom of speech very highly.

There was a great debate among our Founding Fathers regarding the need for a Bill of Rights.  Some felt there was no need, since what wasn't expressly given away by citizens to the government was a freedom they retained.  Others felt that a Bill of Rights was essential to protect particular freedoms by enumerating them.  Still others questioned how it would be possible to name every possible freedom meant to be retained by citizens.  Some arguments were a matter of political practicality--opposition to adding a Bill of Rights was motivated by the goal of getting the Constitution ratified as promptly as possible, without getting tangled up in debates over a Bill of Rights. Obviously, the Constitution was ratified and a Bill of Rights was added, which courts have construed to protect our freedoms.

Representative Journals of the United States, 1885; Newspapers and their editors shown:  1st Row:  The Union and Adviser, Wm Purcell; The omaha Daily Bee, Edward Rosewater; The Boston Daily Globe, Chs. H. Taylor; Boston Morning Journal, Wm Warland Clapp; The Kansas City Times, Morrison Mumford; The Pittsburg Diispatch, Eugene M. O'Neill.  2nd Row:  Albany Evening Journal, John A. Sleicher; The Milwaukee Sentinel, Horace Rublee; The Philadelphia Record, Wm M. Singerly; The New York Times, Geo. Jones; The Philadelphia Press, Chs. Emory Smith; The Daily Inter Ocean, Wm Penn Nixon; The news & Courier, Francis Warington Dawson.  3rd Row:  Buffalo Express, James Newson Smith; The Daily Pioneer Press, Jos. A. Wheelock; The Atlanta Constitution, Henry W. Grady and Evan Howell; San Francisco Chronicle, Michael H. de Young; The Washington Post, Stilson Hitchins.  (Enlarge by clicking on the image.)
Freedom of the Press was one of those freedoms about which concerns were raised as ratification of the Constitution was debated.  Some states had already included freedom of the press in their state constitutions.  In #84 of The Federalist Papers, Alexander Hamilton addressed concerns about the need for expressly protecting freedom of the press.  He did not disagree with the importance of a free press but rather based his argument on the impractically of drafting such protection.  "What is the liberty of the press?" he asked.  "Who can give it any definition which would not leave the utmost latitude for evasion?"  Hamilton continued, "...whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general opinion of the people and of the government."

Yet, ultimately it was decided that a Bill of Rights should be added, and the First Amendment to the Constitution states "Congress shall make no law...abridging the freedom of speech, or of the press..."

Coverage of the Sinking of the Maine
That freedom is not completely without limit.  For example, courts have ruled that a man cannot stand up in a theater and shout "Fire!" when there is none, to cause a panic that would likely cause injury to those attempting to flee a nonexistent danger.  Pornography is another example of limited speech, as is slandar.  In addition to legal limits, social customs have also limited speech in such ways as disapproving vulgarity, expecting the courtesy of quiet during religious observances and cultural performances, and observing traditions of sportsmanship during athletic competitions.  Each generation has shaped those customs.

From a political perspective, free speech and a free press allow issues to be debated and policies to be shaped.  In the case of Whitney v. California, decided in 1927, Justice Louis Brandeis wrote:  "...freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth."  In the 1880s and 1890s of Isaac Werner's time, publishers like William Randolph Hearst and Joseph Pulitzer exerted huge influence across the nation, Hearst with the San Francisco Examiner, published in San Francisco, and Pulitizer with The World, published in New York. But, as described in last week's blog, countless small newspapers in towns across the nation also exerted their influence.

Coverage of the Sinking of the Maine
The images of front page coverage of the sinking of the Maine in Cuba illustrate the power of newspapers to inflame national support for declaring war against Spain, the New York Journal describing the explosion as "the work of an enemy" and The World declaring "caused by bomb or torpedo.  The advance toward war was already underway when investigation led to the conclusion that explosion of a boiler on the ship was the likely cause.

Today, many once powerful newspapers have ceased to exist, and the newspapers still being published in small towns have shrunk to a few pages which are no longer published daily.  Americans are more likely to get their news on television and the internet than from a daily newspaper, and concern is growing about altnews and 'alternativefacts.'

However, questions about truth and accuracy in the press are nothing new.  In doing the research for my manuscript, I found one interesting example.  Homesteaders in Kansas and elsewhere had gone deeply in debt when prices for their crops were high, and they had mortgaged their farms to pay for livestock, implements, fencing, and improvements such as buildings and windmills.  When crop prices fell and interest rates for the renewal of their loans soared, they were at risk of foreclosure.  A fear spread that English investors would buy up the mortgages and American farmers would fall victim to a serfdom like tenant farmers in Ireland.  Political parties added prohibitions against foreign ownership of land to their platforms--not just the populists but also the two mainstream parties, and states passed laws prohibiting foreign ownership of land.  Yet, while there were examples in Kansas and other states of communities in which settlers from other nations came as a group to settle, I struggled to find examples of foreign investors attempting to replicate the Irish system of tenant farmers in America, although many newspapers warned of that threat.

Next week's blog will explore the continuing role of the press in America, both in the past and the present.

Thursday, March 9, 2017

The County Capital & The St. John News

Ad from the County Capital
For those of you who follow this blog, you have frequently seen references to The County Capital.  It was the newspaper to which Isaac Werner subscribed and for which he occasionally wrote.  It was the newspaper of the progressive movement, and it unabashedly supported populist ideas.

The St. John News was the Republican newspaper.  Its bias was equally obvious, for which they made no apologies.  That was the practice of that era, and people subscribed to the paper with which they agreed.

The community of Stafford had the Stafford Democrat, which declared its perspective in its name, so it appears that if you lived in Stafford County in the 1880s, you were able to subscribe to a newspaper that printed the news with the bias that allowed you to read the news from the perspective you wanted to read.  

Just as I have often quoted from one of President Bush's advisors, "People read to be affirmed, not to be informed," and that was true in Isaac's time, just as it is today.  While it might be thought that the internet, which makes access to information so easily available, would make people more broadly informed, that has not appeared to be the case.

Political cartoon re wealthy control of the press
Freedom of the press is one of our most valued promises, alongside freedom of speech.  They are really just two sides of the same coin, for one is a form of speech published widely and the other is speech which may or may not be more limited.  Our first President, George Washington, said:  "If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter."  But what if that freedom is used to protect misinformation and propaganda as well as factual information?

Americans are generous in protecting these freedoms.  As lawyer Alan Dershowitz has said:  "Freedom of speech means freedom for those who you despise, and freedom to express the most despicable views.  It also means that the government cannot pick and choose which expressions to authorize and which to prevent. 

Clearly, in Isaac's time the use of newspapers for political purposes was commonplace.  Political parties even endorsed specific newspapers as their official organ.  The St. John News made a joke of having lost subscribers due to the popularity of the populist movement in their area, saying 'now our former subscribers have to borrow a copy to read the News.'

The importance of free speech is not just an American ideal, however. French novelist, Marcel Proust, who lived from 1871 to 1922, wrote:  "As long as men are free to ask what they must, free to say what they think, free to think what they will, freedom can never be lost and science can never regress."

Ad from the County Capital
Even earlier, French lawyer and member of the Committee of Public Safety, Maximilien Robespierre (1758-1794) wrote:  "The secret of freedom lies in educating people, whereas the secret of tyranny is in keeping them ignorant."  That enlightened quote must be considered, however, with awareness that he is perhaps best known for his role in the French Revolution's Reign of Terror and his support for political killings.

In researching the populist movement that swept the nation in the 1880s and 1890s, and which found such acceptance in Kansas, newspapers were a valuable source for my research.  Even small towns had multiple newspapers.  Without radio, television or the internet, people got their news from the newspapers and from orators that traveled the country to speak at large mass rallies.  It was an exciting time in Kansas.  Next week I will share more history about balancing freedom of speech and the press with the delivery of information for an informed public.

The ads and the political cartoon are from the County Capital newspaper during the late 1880s and early 1890s.

Wednesday, March 1, 2017

Chief Justice John Marshall

Chief Justice John Marshall
Isaac B. Werner's Journal in Kansas was resumed in 1884 and continued daily through 1891.  During that time, only four United States Supreme Court nominations were presented to the Senate by the President.  Since the issue of selecting a replacement for Justice Scalia has been in the news now for nearly a year, I thought it would be interesting to see what had happened during the time Isaac was writing in his journal.

During that time the selection of Justices for the Kansas Supreme Court was highly significant, but Isaac's journal contains no reference to the four US Supreme Court appointments between 1884 and 1891.

During 1884-1891 while Isaac was writing in his journal, President Cleveland nominated two men during his first term, both of whom were confirmed by the Senate--Lucius Quintus Cincinnatus Lamar in 1887 and Melville Fuller in 1888.  Cleveland's first and second terms were interrupted by the election of President Harrison, who nominated David Josiah Brewer in 1889 and Henry Billings Brown in 1890, both of whom were confirmed.  (After Isaac's journal ended but prior to Isaac's death, Harrison nominated 2 other justices who were confirmed, and during Cleveland's second term he nominated 4 men, 2 of whom were rejected, the nomination of 1 was not acted upon, and 1 was confirmed by voice vote shortly before Isaac's death.)

John Marshall, whose image appears at the beginning of this blog, served on the court for 34 years, from 1801-1835.  The son of Thomas Marshall and Mary Isham Keith, Marshall fit the stereotype for America's early leaders, having been born in a log cabin and raised in a rural community so far from a school that he was largely home schooled.  Yet, despite his humble beginnings, he is regarded as perhaps our greatest Chief Justice for the reason that he set many precedents that now define the American legal system.  Therefore, although Marshall served before Isaac Werner's lifetime, the Supreme Court that Isaac knew, as well as the Supreme Court those of us living now know, was shaped by this man.

It is ironic that one precedent that his nomination set was ignored in the hub-bub of the recent election year.

John Adams
John Marshall was nominated by John Adams on January 20, 1801.  He was confirmed by voice vote 7 days later.  What was unusual about that was that John Adams had already been defeated by Thomas Jefferson when he nominated Marshall and was a lame duck president with only days left to serve in that office when he nominated a justice with open hostility toward the new President-elect.  Yet, the Senate did not hesitate to confirm the nominee, which was acknowledged even at that time as having been done by Adams for political reasons.

It was, in one sense, a sort of pay back, since President Washington had nominated Oliver Elsworth in 1796 in the last days of his presidency to thwart John Adam's ability to fill the vacancy.  

Therefore, the precedent that lame duck presidents have the authority to nominate someone for the Supreme Court with the expectation that the Senate will consider the nominee in a timely way was set by our first two Presidents.

In 2016, with ten months of his second term in office remaining, President Obama nominated Judge Merrick Garland to fill the seat formerly occupied by Justice Scalia. Senate Majority Leader Mitch McConnell declined to bring Garland's nomination to the floor for consideration. McConnell stated his belief that the American people should have a say in who was chosen to fill the seat.  In fact, the American people had "their say" when they elected Senator McConnell and every other sitting Senator whose duty as Senators was to "advise and consent," just as the American people had "their say" when they elected President Obama to a second term of four years with the responsibility to fill any vacancy on the Court during his term of office.  There are six options available to the Senate when a President names his nominee.

Once nominations are formally sent by the President to the Senate for their "advice and consent," the Senate (or in some cases, the nominee) may take one of the following actions:
1.  "take no action," in which the Senate session ends without the nomination being brought to the floor for consideration;
2.  "postpone," in which it is brought to the floor but a vote is taken to defer consideration;
3.  "reject," in which the nominee fails to receive confirmation;
4.  "confirm," in which the nominee is confirmed and he/she accepts the confirmation;
5.  "decline," in which the nominee declines the nomination; and
6.  "withdraw," in which the nominee accepts but subsequently withdraws before confirmation.

Obviously, politics have played a role in every appointment and confirmation, with Presidents making their choices based on men and women who share their political views regarding the Constitution.  Likewise, Senators cast their votes for or against these nominees not only on the basis of the qualifications of the nominee but also with regard to political differences about Constitutional issues.

From most all reasonable accounts, two honorable men have been nominated to fill the vacancy left by Justice Scalia's death--Merrick Garland by President Obama and Neil Gorsuch by Trump.  Had Garland been confirmed, politics would have played a role in the Senate's responsibility to advise and consent, just as politics will play a role if Gorsuch is politics played a role when the late nominations of Oliver Elsworth and John Marshall were confirmed two centuries ago.

Clearly, one of the actions possible for the Senate to take is "take no action," which is what was done in the case of Merrick Garland's nomination.

United States Supreme Court
However, it is important that Americans understand that the implication that a President lacks the power to nominate his choice for the court during a presidential election year is incorrect.  The nominations of justices by our first two Presidents were far later in their terms; yet, the Senate fulfilled their Constitutional duty to advise and consent and both nominees were confirmed. Of course, midnight appointments have always been closely scrutinized, but in comparison to the acts of Washington and Adams, disposing of a nominee made ten months prior to the end of the President's term through "no action" was neither a questionable midnight appointment nor without precedent.

There were, until 2016, only four examples of  "no action" taken on a Supreme Court nominee. President Tyler struggled to fill two seats on the court during his presidency, and he succeeded in filling only one.  The other seat on the court remained empty until President Polk filled it.  President Fillmore also struggled to fill the seat of one justice, "no action" taken on his first nominee, the second nominee "withdrawn," a third "declined," and "no action" taken on his fourth attempt, a very late nomination in February just prior to President Pierce's inauguration on March 4th.  President Hays attempted a late nomination which was not acted upon; however, President Garfield then renominated the same man when he was inaugurated.

Although there are many examples of politics, rather that the merits of the nominee, defeating a President's choice for the Court, Americans should not be confused by recent events to believe that our Presidents lack such authority in the final year of their Presidency.  Were that so, we would never have had one of our greatest Chief Justices, John Marshall.