Of Miers and Men
In answer to a request from one meta-blog, "I oppose the Miers nomination," not for any one reason, but for the convergence of inexperience and cronyism -- neither of them alone a sufficient reason to reject -- and for the growing suspicion that there is something stealthy about this nomination. Not that any secret deal has been cut, but that Miers is so closely aligned to Bush, and so devoted to him, that Bush would be in effect appointing himself to the court.
That being said, I looked back last night to another president who re-shaped the Supreme Court in a few months. That would be Abe Lincoln, who appointed a total of five Supreme Court justices, three in rapid succession.
Now as Lincoln is held up as a great American president, an exemplar of political maturity and statesmanship -- in short, everything George W. Bush's critics say he lacks -- you'd think his Supreme Court appointments would look nothing like Bush's current fiasco.
You'd be wrong. The only difference is, Lincoln didn't have the howling opposition Bush has, both from his base and his enemies, when they are displeased. But then, in these matters, Lincoln went out of his way not to displease his friends, and his enemies were safely out of the union and could do him no harm.
One other difference between now and then was that Supreme Court justices had more direct authority over the circuit courts they oversaw. They didn't just accept petitions, they went out personally and heard cases. They were expected to know the nuances of the state laws -- which in those days were not entirely overridden by federal law.
Consequently, by tradition, the Supreme Court justice who oversaw a circuit was a man from it (the chief justice, obviously was an exception). That encouraged the habit of treating Supreme Court judgeships as political plums, and as reward to politicians in states that had been particularly helpful in getting a president elected.
The top court already had a vacancy when Lincoln was elected. Justice Peter V. Daniel had died on May 31, 1860. The seat traditionally went to a Southerner (Daniel was from Virginia), but Buchanan held off naming a replacement, probably figuring, correctly, that to do so would pour more sectarian fuel on the nation's raging political fire during a desperate election campaign.
But Buchanan delayed too long, even after the results of the election were known. As Southern states seceded from the union in reaction to Lincoln's win, they took their senators with them, and the majority in that chamber shifted to the Buchanan-hating Republicans. Buchanan finally nominated his attorney general, Jeremiah S. Black, but the Senate rejected him.
Black was an able legal mind, a union loyalist who later served in the Lincoln Administration, and judging by modern standards he would have been a far more capable appointment to the court than any of the men Lincoln subsequently put forth. But politics denied him the job.
Lincoln, distracted by the collapse of the union, did not immediately act to fill the gap on the top court. Two others quickly followed. Elderly Justice John McLean of Ohio (he had been appointed by Andrew Jackson) died April 4, 1861, after a long illness, and at the and of the month Justice John A. Campbell of Alabama resigned to join the Confederacy.
[Campbell was a moderate and a union man; he had liberated his own slaves, and in December 1860 he tried to prevent Alabama from seceding. However, once the Confederacy was an accomplished fact, and seeing the behavior of the Lincoln Administration toward it, Campbell went to serve his section and his state, to try to guide them through the folly, as he saw it, of their ways.]
When Lincoln did get around to nominating replacements, he took politics into consideration. But he also looked for men who would support the decisions he already was making -- many of them blatantly unconstitutional, to defeat the Southern rebellion. He looked for justices who would uphold his questionable policies, made in the name of a questionable war.
David M. Silver, in "Lincoln's Supreme Court," wrote, "Two main factors controlled the administration's appointments to the Court: Lincoln's demand that the selectees have sound views toward the great political issues of the Civil War, and the political forces that guided his selections. Lincoln did not regard legal training and judicial experience as primary requirements."
In fact, only two of the five men he raised to the bench had previous experience as judges. "President Lincoln demanded sound views on the war rather than extensive service in the state courts or the lower federal courts. Lincoln sought men who were trustworthy thinkers on problems of the war and men who were prominent in the professions of law. But he sought men whose selection would be good politics, as well."
The first was Noah H. Swayne of Ohio, a corporate lawyer with no office-holding experience. He was so little known outside the state that the big Eastern newspapers consistently misspelled his name ("Swain") for days after his nomination was announced. But the choice satisfied the powerful Ohio Republican party, as well as the big business interests in the national party.
Swayne also held sound views on slavery and secession. As Silver judiciously put it, "Justice Swayne firmly upheld the policies Lincoln deemed necessary to save the Union."
Swayne, like all Lincoln's appointees, continued to play politics, solocit favors, and canvass for pet causes after his elevation to the bench.
Lincoln's next appointment was Samuel F. Miller of Iowa, a powerful anti-slavery lawyer and politician. Lincoln chose him after a flood of pressure from Iowa political leaders, whose letters to Lincoln included some curious reasons. One said that, "as a jurist, [Miller] has no superior in the State," even though Miller had never been a judge. Another urged him as an "Earnest Patriot and conscientious Republican," and added emphatically that Miller "has never held a public office."
Once again the Eastern newspapers had no idea who he was, and for months they sometimes confused him with another Miller of Iowa, a former Whig Congressman.
Silver summed him up: "Despite the critical statement that Miller's 'preponderant qualification was that he was chairman of the Republican district committee at Keokuk,' selection of Miller was not out of harmony with Lincoln's concept of what qualified a man for elevation to the Supreme Court."
Four candidates lobbied hard for the third vacancy. The man who took the prize was the ultimate crony, if ever there was one: David Davis. Davis was a state judge in Illinois in whose courtroom lawyer Lincoln once had practiced. The two grew close, and worked together politically. Davis exerted himself mightily in Lincoln's 1858 Senatorial campaign and at the 1860 Republican convention, he led the stampede for Lincoln's presidential nomination.
When state election results came in in 1860, and showed the door was open for Lincoln to win the White House, Judge Davis was trying an important criminal case, but when he heard the good news he burst into jubilation right in the courtroom, kicked over a clerk's desk, turned a double somersault and adjourned the court until after the presidential election.
The letter-writing campaign on Davis' behalf frankly mentioned the political debt the president owed him. One asked why Davis should not be appointed, "especially when he was so instrumental in giving position to him who now holds the matter in the hollow of his hand?" Another wrote that the appointment of Davis would be pleasing "especially to the circle of your old personal friends." A third asked, "Now should not a man in power remember those men, and discriminate in favor of those men, who throughout life have been as true as steel to him. Is this not common justice[?]"
Lincoln must have thought so. He chose Davis.
Lincoln didn't always get his way from the Supreme Court, but on essential matters he did. And the generation that followed these appointments is reckoned one of the weakest in the history of the court.
That being said, I looked back last night to another president who re-shaped the Supreme Court in a few months. That would be Abe Lincoln, who appointed a total of five Supreme Court justices, three in rapid succession.
Now as Lincoln is held up as a great American president, an exemplar of political maturity and statesmanship -- in short, everything George W. Bush's critics say he lacks -- you'd think his Supreme Court appointments would look nothing like Bush's current fiasco.
You'd be wrong. The only difference is, Lincoln didn't have the howling opposition Bush has, both from his base and his enemies, when they are displeased. But then, in these matters, Lincoln went out of his way not to displease his friends, and his enemies were safely out of the union and could do him no harm.
One other difference between now and then was that Supreme Court justices had more direct authority over the circuit courts they oversaw. They didn't just accept petitions, they went out personally and heard cases. They were expected to know the nuances of the state laws -- which in those days were not entirely overridden by federal law.
Consequently, by tradition, the Supreme Court justice who oversaw a circuit was a man from it (the chief justice, obviously was an exception). That encouraged the habit of treating Supreme Court judgeships as political plums, and as reward to politicians in states that had been particularly helpful in getting a president elected.
The top court already had a vacancy when Lincoln was elected. Justice Peter V. Daniel had died on May 31, 1860. The seat traditionally went to a Southerner (Daniel was from Virginia), but Buchanan held off naming a replacement, probably figuring, correctly, that to do so would pour more sectarian fuel on the nation's raging political fire during a desperate election campaign.
But Buchanan delayed too long, even after the results of the election were known. As Southern states seceded from the union in reaction to Lincoln's win, they took their senators with them, and the majority in that chamber shifted to the Buchanan-hating Republicans. Buchanan finally nominated his attorney general, Jeremiah S. Black, but the Senate rejected him.
Black was an able legal mind, a union loyalist who later served in the Lincoln Administration, and judging by modern standards he would have been a far more capable appointment to the court than any of the men Lincoln subsequently put forth. But politics denied him the job.
Lincoln, distracted by the collapse of the union, did not immediately act to fill the gap on the top court. Two others quickly followed. Elderly Justice John McLean of Ohio (he had been appointed by Andrew Jackson) died April 4, 1861, after a long illness, and at the and of the month Justice John A. Campbell of Alabama resigned to join the Confederacy.
[Campbell was a moderate and a union man; he had liberated his own slaves, and in December 1860 he tried to prevent Alabama from seceding. However, once the Confederacy was an accomplished fact, and seeing the behavior of the Lincoln Administration toward it, Campbell went to serve his section and his state, to try to guide them through the folly, as he saw it, of their ways.]
When Lincoln did get around to nominating replacements, he took politics into consideration. But he also looked for men who would support the decisions he already was making -- many of them blatantly unconstitutional, to defeat the Southern rebellion. He looked for justices who would uphold his questionable policies, made in the name of a questionable war.
David M. Silver, in "Lincoln's Supreme Court," wrote, "Two main factors controlled the administration's appointments to the Court: Lincoln's demand that the selectees have sound views toward the great political issues of the Civil War, and the political forces that guided his selections. Lincoln did not regard legal training and judicial experience as primary requirements."
In fact, only two of the five men he raised to the bench had previous experience as judges. "President Lincoln demanded sound views on the war rather than extensive service in the state courts or the lower federal courts. Lincoln sought men who were trustworthy thinkers on problems of the war and men who were prominent in the professions of law. But he sought men whose selection would be good politics, as well."
The first was Noah H. Swayne of Ohio, a corporate lawyer with no office-holding experience. He was so little known outside the state that the big Eastern newspapers consistently misspelled his name ("Swain") for days after his nomination was announced. But the choice satisfied the powerful Ohio Republican party, as well as the big business interests in the national party.
Swayne also held sound views on slavery and secession. As Silver judiciously put it, "Justice Swayne firmly upheld the policies Lincoln deemed necessary to save the Union."
Swayne, like all Lincoln's appointees, continued to play politics, solocit favors, and canvass for pet causes after his elevation to the bench.
Lincoln's next appointment was Samuel F. Miller of Iowa, a powerful anti-slavery lawyer and politician. Lincoln chose him after a flood of pressure from Iowa political leaders, whose letters to Lincoln included some curious reasons. One said that, "as a jurist, [Miller] has no superior in the State," even though Miller had never been a judge. Another urged him as an "Earnest Patriot and conscientious Republican," and added emphatically that Miller "has never held a public office."
Once again the Eastern newspapers had no idea who he was, and for months they sometimes confused him with another Miller of Iowa, a former Whig Congressman.
Silver summed him up: "Despite the critical statement that Miller's 'preponderant qualification was that he was chairman of the Republican district committee at Keokuk,' selection of Miller was not out of harmony with Lincoln's concept of what qualified a man for elevation to the Supreme Court."
Four candidates lobbied hard for the third vacancy. The man who took the prize was the ultimate crony, if ever there was one: David Davis. Davis was a state judge in Illinois in whose courtroom lawyer Lincoln once had practiced. The two grew close, and worked together politically. Davis exerted himself mightily in Lincoln's 1858 Senatorial campaign and at the 1860 Republican convention, he led the stampede for Lincoln's presidential nomination.
When state election results came in in 1860, and showed the door was open for Lincoln to win the White House, Judge Davis was trying an important criminal case, but when he heard the good news he burst into jubilation right in the courtroom, kicked over a clerk's desk, turned a double somersault and adjourned the court until after the presidential election.
The letter-writing campaign on Davis' behalf frankly mentioned the political debt the president owed him. One asked why Davis should not be appointed, "especially when he was so instrumental in giving position to him who now holds the matter in the hollow of his hand?" Another wrote that the appointment of Davis would be pleasing "especially to the circle of your old personal friends." A third asked, "Now should not a man in power remember those men, and discriminate in favor of those men, who throughout life have been as true as steel to him. Is this not common justice[?]"
Lincoln must have thought so. He chose Davis.
Lincoln didn't always get his way from the Supreme Court, but on essential matters he did. And the generation that followed these appointments is reckoned one of the weakest in the history of the court.
Labels: history, Lincoln, Supreme Court
