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 considered...as 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.