Lincoln and the Supreme Court (II): The Right Thing to Do

On this date in 1864, U.S. Supreme Court Chief Justice Roger Taney died.  Only 27 days remained until the presidential election on November 8.  President Lincoln’s Republican Party had a majority in the Senate, which must approve Supreme Court nominations.  Does the situation sound familiar?

Kamala Harris offered her own interpretation of the situation during last week’s Vice-Presidential debate by giving a “history lesson”:

“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.’”

Did Abraham Lincoln actually say that?  Perhaps more importantly, if he had lost the election, would he have allowed his successor to choose the nominee?

It is true that Lincoln did not submit a nomination to the Senate until after the election.  But the reason that he delayed was not so that whomever the people elected could choose the nominee, nor did he ever utter the statement attributed to him by Ms. Harris.  Instead, the reason that he did not submit a nomination was most likely simply because Congress wasn’t in session.  Congress reconvened on December 5, and Lincoln – by this time re-elected – sent over the nomination for Salmon Chase the very next day.

In fact, on the same day on which Taney passed away, Lincoln was asked whether he was going to nominate a replacement for a district judge who had passed away a few weeks earlier (Albert S. White).  Lincoln’s reply?  “I now incline to defer the appointment of Judge until the meeting of Congress” (emphasis added).  His other option wasn’t to defer so that the winner of the election could decide; it was to make a recess appointment in Congress’s absence, something he actually did in filling a prior Supreme Court vacancy (that filled by David Davis, later confirmed by the Senate via a regular appointment, sent over, we might add, on the very day the Senate reconvened).

The most that might be said is that Lincoln delayed making known a nominee until after the election so as to not unnecessarily alienate the potential nominees and their followers.  He wanted Chase, as well as Montgomery Blair and others, to campaign for him to help ensure his re-election. Some have suggested that Lincoln’s re-election was inevitable given the results of certain State elections which took place in mid-October.  But Lincoln didn’t see it that way; he made his own calculation at the time, perhaps a worst-case scenario, giving him 117 electoral votes and his opponent 114.

But what if Lincoln had lost the election?  Isn’t it possible that he would have, in the words of Ms. Harris, “done the right thing” and refrained from making a nomination, allowing the winner of the election to make that choice?

Lincoln’s opponent was the Democrat George B. McClellan.  The platform of the Democratic Party for the 1864 election lambasted the Lincoln administration’s “failure to restore the Union by the experiment of war, during which, under the pretense of a military necessity of war-power higher than the Constitution, the Constitution itself has been disregarded in every part, and public liberty and private right alike trodden down”.  They didn’t enumerate the ways in which the administration had supposedly disregarded the Constitution, but chief among them was undoubtedly the Emancipation Proclamation, a self-described “fit and necessary war measure” and “an act of justice, warranted by the Constitution, upon military necessity”.

The Democratic platform went on to demand the restoration of peace on the basis of the Federal Union of the States, further resolving “that the aim and object of the Democratic party is to preserve the Federal Union and the rights of the States unimpaired”.  Was there any State right under greater threat than that of slavery?

In McClellan’s letter accepting the nomination, he noted: “The preservation of our Union was the sole avowed object for which the war was commenced.  It should have been conducted for that object only.”  He said that once it was clear that the rebels were ready for peace, we should strive “to secure such peace, re-establish the Union, and guarantee for the future the constitutional rights of every State.  The Union is the one condition of peace – we ask no more.”

It was the Emancipation Proclamation which had marked the addition of a second objective to the war, that of abolishing slavery.  McClellan and the Democrats wanted a return to the sole objective of preservation of the Union, and nothing more.

The Democrats in general, and McClellan in particular, believed the Emancipation Proclamation to be unconstitutional.  If McClellan had been elected President on November 8, would Lincoln’s “right thing to do” have been to refrain from nominating someone so that McClellan could do so?  McClellan would have nominated someone who believed as he did, that the Emancipation Proclamation was unconstitutional, or if that were not possible given the composition of the Senate, at least someone far less radical than Chase on the subjects of emancipation, abolition, and equality for black Americans.

Lincoln considered the Emancipation Proclamation to be his most important act, reportedly saying: “I never, in my life, felt more certain that I was doing right, than I do in signing this paper”.  If he had lost the 1864 election to McClellan, is there any doubt that he would have gone ahead and nominated Chase for Chief Justice anyway, knowing that Chase would uphold not only the Emancipation Proclamation but also the pending 13th amendment to the Constitution, which would abolish slavery once and for all?  For Abraham Lincoln, that would have been the “right thing to do”!

For more on Lincoln’s Supreme Court nominations – five in all – and his great impact on the court, see this blog post from two years ago: “Lincoln and the Supreme Court: Little Drama, Much Impact”.

Kevin J. Wood

October 12, 2020