During his four-year, one-month Presidency, Abraham Lincoln nominated five judges to the U.S. Supreme Court, including one Chief Justice. All five were approved within one week. That’s right: no drama, no meticulous background investigations, no rancorous and divisive hearings, no grandstanding politicians, and no endless media coverage!
But this is not to say that the topic of the Supreme Court didn’t generate controversy in Lincoln’s day. Just the opposite! Lincoln himself had even claimed – in response to the 1857 Dred Scott v. Sandford decision – that the Court was part of a vast conspiracy to nationalize the institution of slavery [see my June 27, 2015 blog for more on that]. And there was a huge ongoing debate about how to restructure the entire federal court system, which was outdated and overburdened due to the growth of the country in both size and population. Would it surprise you to learn that for decades Congress had been slow to modify the court system, in large part due to partisan and sectional bickering?
It should be noted that back then, Supreme Court justices also presided over the federal circuit courts; they actually travelled twice each year to their assigned regions to hear cases. In fact, they spent more time “riding the circuit” than in Washington. Lincoln himself had argued cases at Chicago before Justice John McLean, whose circuit included Illinois. And although in most cases there was not an explicit residency requirement, the justices were generally chosen from the regions they would serve, thus preserving a geographic diversity on the Court.
By the time Lincoln became President in 1861, the federal court system was badly in need of restructuring. In addition, one justice had died in 1860 and another did so just one month after Lincoln’s inauguration (McLean), and still another had resigned in order to join the Confederate government as Assistant Secretary of War (John A. Campbell, the only southern justice to resign).
In his first Annual Message to Congress on December 3, 1861, Lincoln explained that he had not yet made nominations for the three vacancies in part because two of the seats had traditionally been held by southerners and this presented obvious difficulties:
Two of the outgoing judges resided within the States now overrun by revolt; so that if successors were appointed in the same localities, they could not now serve upon their circuits; and many of the most competent men there, probably would not take the personal hazard of accepting to serve, even here, upon the supreme bench. I have been unwilling to throw all the appointments northward, thus disabling myself from doing justice to the south on the return of peace; although I may remark that to transfer to the north one which has heretofore been in the south, would not, with reference to territory and population, be unjust.
Lincoln then described the great need for a restructuring, noting the very large population now contained in McLean’s circuit – “his circuit grew into an empire” – and the fact that “besides this, the country generally has outgrown our present judicial system”. He was especially critical of the lack of uniformity, as the last eight states admitted to the Union were excluded entirely from the circuit court system (they were attended by district courts instead), and concluded: “Circuit courts are useful, or they are not useful. If useful, no State should be denied them; if not useful, no State should have them. Let them be provided for all, or abolished as to all.”
In all this we see Lincoln’s overriding concern that fairness and justice be the goals of any changes to the court system. He then offered three proposals for fixing the problems:
Three modifications occur to me, either of which, I think, would be an improvement upon our present system. Let the Supreme Court be of convenient number in every event. Then, first, let the whole country be divided into circuits of convenient size, the supreme judges to serve in a number of them corresponding to their own number, and independent circuit judges be provided for all the rest. Or, secondly, let the supreme judges be relieved from circuit duties, and circuit judges provided for all the circuits. Or, thirdly, dispense with circuit courts altogether, leaving the judicial functions wholly to the district courts and an independent Supreme Court.
Lincoln decided to fill McLean’s seat in January 1862, nominating Noah Haynes Swayne, who like McLean was from Ohio, and whom the Senate confirmed just three days later. But then he waited on Congress.
Congress finally responded in July 1862 by redrawing the nine circuits to include all the states except California and Oregon in the far west, also making them more equitable in terms of population served. Since the north had grown much more than the south in population since the last restructuring in 1837, this had the effect of – to use Lincoln’s earlier quaint phrase – “throwing the appointments northward”. Southerners had previously outnumbered northerners on the Court 5-4; now northerners would outnumber southerners 6-3.
The very next day, Lincoln asked his Attorney General Edward Bates to prepare the nomination of Samuel Freeman Miller of Iowa for one of the newly redrawn circuits. Lincoln’s hand-written note to Bates was remarkably brief and informal:
Please send me nominations, of Samuel F. Miller, of Iowa, as a Justice of the Supreme Court, for the Circuit in which Iowa is included; and of ________ Trigg (you have his first name) for District Judge in Tennessee.
That same day, Bates provided Lincoln with Miller’s nomination and Lincoln sent it to the Senate: “I nominate Samuel F. Miller of Iowa to be Associate Justice of the Supreme Court of the United States.” The Senate confirmed Miller in just half an hour.
Later that fall, with Congress not in session, Lincoln appointed his old Illinois friend David Davis to the final vacancy by way of a recess appointment. When Congress reconvened on December 1, Lincoln nominated Davis for a regular appointment, and the Senate confirmed him exactly one week later.
Congress made a further change in March 1863, adding a tenth circuit for California and Oregon, which therefore increased the number of justices on the court from nine to ten. Lincoln immediately nominated Stephen Johnson Field of California for the new position, and he was approved just four days later.
Then in October 1864, Chief Justice Roger Taney, author of the despised Dred Scott decision, did Lincoln a great favor by passing away. Not only was the Court rid of Taney, but now Lincoln had a convenient solution to his problem of finding a new post for his former Secretary of Treasury, and Presidential wannabe, Salmon P. Chase.
Lincoln’s nomination of Chase as Chief Justice on December 6 was approved by the Senate on the very same day. Whereas Taney had declared that black slaves and their descendants could never be citizens of the United States, one of Chase’s first actions was to accept the application of John Rock, a black lawyer, to practice before the Court.
Lincoln’s five appointments, including his appointment of Chase as Chief Justice, along with the redrawing of the circuits done by Congress, totally remade the Supreme Court. It is probably no exaggeration to say that Lincoln’s impact on the Court was greater than that of all of our other presidents except for Washington (who named the entire first Court), John Adams (who appointed John Marshall as Chief Justice), Andrew Jackson (who appointed six justices, including Taney as Chief Justice), and Franklin D. Roosevelt (who appointed eight justices, although he failed in his attempt to “pack the court”).
And, as already noted, Lincoln’s five nominees were approved by the Senate in three, zero, seven, four, and zero days, an average of less than three days (and one in just half an hour). One wonders what Lincoln would think of the current confirmation process!
Kevin J. Wood
October 5, 2018