About That Post-Election Supreme Court Nomination by Abraham Lincoln

In the wake of Amy Coney Barrett’s confirmation to the Supreme Court, it is time to settle a recurring point of debate about election-year nominations to the high court. Ever since the most recent Supreme Court vacancy was created by Justice Ruth Bader Ginsburg’s death on September 18, those who opposed filling it repeatedly argued that the nomination process must be delayed and the vacancy filled by whomever wins the presidential election. Their reasoning was based not on any constitutional command, but on the norms that have supposedly set the terms of past nominations—which calls for an examination of the actual record.

As a matter of history, the problem with that argument is that every president who has had an election-year vacancy has attempted to fill it before the expiration of his term, and whether the Senate confirms his nominee overwhelmingly depends on whether it is controlled by the president’s party or the opposition.

Not counting recess appointments and vacancies that were filled during an election year but occurred the previous year, a total of 16 vacancies previously arose on the Court through December 31 of a presidential election year. Ten of those vacancies arose when the Senate was controlled by the president’s party, and the Senate confirmed nominees to eight of them before the end of the president’s term. One of those two exceptions occurred after James Buchanan waited over eight months to make a nomination, by which time less than a month remained in his term, and so many Democrats had withdrawn during the secession crisis that they lost their majority.

In the remaining six cases—excluding one that was filled in 1956 by Dwight Eisenhower’s recess appointment of William Brennan—the Senate was controlled by the opposition party when the vacancy arose. In four of those six cases, the nominations failed, and the vacancies remained unfilled until the next president took office.

Other analyses of the question have looked at a different range of historical samples, such as strictly pre-election day vacancies during an election year or all vacant seats that existed at any time between an election year and the next inauguration. By any metric used, the same-party versus opposite-party dynamic still holds in the vast majority of cases.

Perhaps for that reason, senators attempting to support a process-based objection retreated from making broad generalizations about not filling a seat in an election year and narrowed their focus to a single case: the vacancy that faced Abraham Lincoln when Chief Justice Roger Taney died on October 12, 1864, which the president did not fill until after that election. Senator Kamala Harris, during the October 7 vice presidential debate, told viewers: “Honest Abe said” about filling that seat, “‘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 can select who will serve for a lifetime on the highest court of our land.’”

Harris’ account echoed a talking point of several other Democratic senators throughout the Supreme Court nomination process for Barrett, including fellow Senate Judiciary Committee members Amy Klobuchar, Richard Blumenthal, and Cory Booker and their colleagues Tom Carper, Jeff Merkley, and Gary Peters. The argument regrettably was given a scholarly imprimatur in a tweet from presidential historian Michael Beschloss during the vice presidential debate. But Lincoln said no such thing.

The fact is that the Senate in 1864 was out of session until December, which ruled out a pre-election confirmation.[1] In addition to the Senate’s timing, Lincoln had his own political reasons for postponing his nomination until after the election.

At the time, of course, Lincoln faced the challenges of both the Civil War and his effort to win re-election, which required the support of a fragile coalition. Before the vacancy arose, he had had plans to nominate Salmon P. Chase to the Court.[2] A former U.S. senator, governor of Ohio, presidential candidate, and Lincoln’s secretary of the treasury until his resignation that summer, Chase was a major national figure and a favorite of Radical Republicans. He had an insatiable ambition for the presidency—earlier, he attempted an abortive stealth campaign to garner support to run against Lincoln for president—that caused Lincoln concern about whether political intrigue would overshadow his talents on the high court.[3]

When Taney died, Lincoln told his private secretary he would be “shut pan” about the vacancy, keeping his own counsel.[4] Whatever second thoughts he had about Chase, he was also inundated with recommendations for other prospects for the seat, including Edwin M. Stanton, his secretary of war; Montgomery Blair, his former postmaster general; Justice Noah Swayne; Edward Bates, his attorney general; and the prominent attorney William M. Evarts.[5] If Lincoln were to win a second term, how could he spare his secretary of war? “[W]here can I get a man to take Secretary Stanton’s place?” the president asked.[6] Blair drew considerable support from prominent conservatives as the alternative to Chase.[7]

It made the most sense not to alienate any faction before the election and to leave the enticement of the appointment as an incentive for the formidable Chase to spend his time stumping on Lincoln’s behalf—which he did all over the Midwest, taking what historian David H. Donald perceptively described as Lincoln’s “cue.”[8]

After Lincoln was re-elected and the Senate reconvened, but before his first term was up, the president proceeded to nominate Chase on December 6. He was confirmed the same day.[9] There is, in short, zero support for the notion that Lincoln waited till after the election in deference to his Democratic opponent, George McClellan, in the event he was defeated in his re-election bid.

It also bears noting that focusing on Lincoln’s vacancy omits others that occurred close to the election. The other ignored mid-October vacancy is the retirement of Sherman Minton on October 15, 1956, which led to Eisenhower’s aforementioned recess appointment of Brennan to that seat on the same day. (His nomination would go to the Senate after it reconvened.)

And to take another example, which occurred shortly after an election, there is the vacancy for Chief Justice that John Adams filled with John Marshall despite having lost his bid for re-election. The Senate was controlled by his Federalist Party and confirmed Marshall.

Buchanan would be less fortunate after he lost the Democratic Senate majority by the time of his ill-fated lame-duck nomination of Jeremiah Black, but he did not allow the fact that his party had just lost the election to Lincoln to keep him from trying.

Lincoln was no exception to the pattern that applied to every other similarly situated president: Neither the prospect of electoral defeat nor the actuality of electoral defeat has been a deterrent to a president attempting to fill a Supreme Court vacancy before the end of his term.

 

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