I decided to take a break from the case of the week this week because, you know, things are happening in the world. You may have heard that the Republican-controlled Senate just confirmed Amy Coney Barrett to the United States Supreme Court. You may have heard that her nomination so close to the election was “unprecedented.” That, strictly speaking, is true, but the sentiment is false. While I appreciate the rhetorical efforts, American history is far too interesting to gloss it over with rhetoric.
How close is too close?
Has anyone ever been nominated and confirmed in the month or two before an election? No. She is the first. Since the ratification of the Constitution in 1788, there have been 120 confirmed Supreme Court justices. Of those, only 31 were nominated less than a year before the next election. Those 31 include:
- 4 nominated in the November before an election (e.g., Anthony Kennedy in November 1987 or John Paul Stevens in November 1975);
- 8 in the December before (including Roger Taney in December 1835);
- 3 in January (including Louis Brandeis, the first Jewish man on the court, in 1916);
- 2 in February (including Benjamin N. Cardozo in 1932, the second Jewish man on the court);
- 2 in March (including Oliver Ellsworth in 1796);
- 1 in April (Melville Fuller in 1888);
- 2 in July (George Shiras, nominated by Benjamin Harrison in 1892 and John Hessin Clarke, nominated by Woodrow Wilson in 1916); and
- 1 in September (Amy Coney Barrett).
The careful reader will note that that is only 23. If 31 were nominated less than a year before the election, what about the other 8? That’s the juicy stuff.
Benign Post-Election Nominations
By my count, eight justices were nominated and confirmed after the election but before inauguration. Three — Salmon P. Chase in 1864, Ward Hunt in 1872, and William Brennan in 1957 — were nominated by presidents who had just won reelection (Lincoln, Grant, and Eisenhower, respectively). A fourth (William Burnham Woods in 1880) was nominated by a president (Hayes) whose party had just won the election, though he wasn’t on the ticket.
Yawn. Boring. I promised juicy stuff. Let’s talk about the four who were nominated by outgoing presidents on the eve of the transfer of power.
Howell Edmunds Jackson
Howell Edmunds Jackson was nominated by Benjamin Harrison on February 2, 1893, just thirty days before the inauguration. Harrison, an Indiana Republican, had lost the election of 1892 to New York Democrat Grover Cleveland, 277 to 145. At the same time, the Senate flipped from a 47-39 Republican majority to a 42-38 Democrat majority. On January 23, 1893, about halfway between the election and the inauguration, Justice Lucius Quintus Cincinnatus Lamar died. Lamar had been nominated by Cleveland during his first term, so putting a Republican in his seat would be something of a coup, especially since the American people had just rejected Harrison and his party and brought Cleveland back.
But Harrison nominated Jackson, a Tennessee Democrat, appointed by Cleveland to the Sixth Circuit during his first term seven years earlier. My guess is that Harrison tried to find a Democrat who would be palatable to the Republicans. The Senate confirmed Jackson by voice vote on February 18, just two weeks before Cleveland’s inauguration. Jackson served only two years on the Supreme Court before dying of tuberculosis. He made two notable contributions: voting with the Democrats in the Income Tax Case and inventing the Supreme Court clerk.
Peter Vivian Daniel
Peter Vivian Daniel was nominated by Democrat Martin Van Buren on February 26, 1841 — exactly one week before William Henry Harrison’s inauguration as the first Whig president.
Andrew Jackson was extremely popular. But his vice president Martin Van Buren . . . let’s just say that the Little Magician was great at winning other people’s elections. In 1836, he rode Jackson’s coattails to victory over a divided Whig Party, 170-73-26-14-11 (yes, the Whigs nominated four candidates). By 1840, the Whigs had culled out their best ticket: Tippecanoe and Tyler Too. Harrison beat Van Buren, 234 to 60, and the Whigs gained six seats and took over the Senate, shifting from a 21-29 minority to a 27-22 majority.
So when Jackson-appointee Philip Pendleton Barbour died of a heart attack just a week before Harrison’s inauguration, the Democrats had to act fast or lose the seat. Barbour died on a Thursday; on Saturday, Van Buren nominated Peter Vivian Daniel, a federal district judge in Virginia, to the seat. The Whigs mobilized, but mobilization was hard in 1840. Only one Whig made it to the vote. [n.1] Daniel was confirmed by a 22-5 vote on March 3, 1841 — the day before Harrison and the Whigs assumed power.
Daniel served 19 mostly forgettable years. Most notably, he concurred in the Dred Scott decision, basing his decision on openly racist thinking. The most interesting thing about the Daniel nomination is what happened four years later.
After Harrison beat Van Buren in 1840, Tippecanoe famously gave a long speech in the winter cold and died just a month into office. John Tyler assumed the presidency and was not well-liked. He has been accused of being a WINO (a “Whig in Name Only”), and the Whigs wouldn’t work with him on anything. Two justices died during his presidency: Smith Thompson (a Monroe appointee) in December 1843 and Henry Baldwin (a Jackson appointee) five months later. Both seats sat vacant for most of the rest of Tyler’s presidency, though not for lack of effort on his part.
Tyler nominated his Treasury Secretary, John Spencer, to succeed Thompson in January 1844. The Whigs in the Senate rejected Spencer three weeks later, 26 to 21. In March, Tyler nominated Reuben Walworth, the long-time Chancellor of New York (at the time, the highest judicial office in New York). When Baldwin died in April, Tyler nominated Edward King, a judge in Pennsylvania, for Baldwin’s seat. The Senate rejected both Walworth and King that summer.
Meanwhile, in the election of 1844, the Whigs replaced Tyler with Henry Clay on their ticket. Clay lost to Polk, 170 to 105, and the Democrats took back the Senate, shifting from 23-27 minority to a 27-24 majority. Facing the lack of both the power to nominate and the power to confirm, the Whigs finally worked with Tyler. In February 1845, less than a month before Polk’s inauguration, Tyler nominated New York trial judge Samuel Nelson to Thompson’s seat and Pennsylvania attorney general John Read to Baldwin’s. Nelson was confirmed by a voice vote; Read never got a vote.
The Whigs had an opportunity in 1844 to take two seats from the Democrats. Instead, they fought their own president and only got to take one seat, and that under icky circumstances. It shouldn’t be any surprise that the Whigs were out of business less than a decade later. Nelson, on the other hand, served on the Supreme Court for 27 years. He wrote a handful of notable opinions, including a concurrence in the Dred Scott decision (opining that federal courts had no jurisdiction over freedom suits) and a dissent in the Prize Cases (opining that Lincoln’s naval blockade of Southern ports was beyond the scope of the president’s war powers).
So just to be clear: Van Buren and the Democrats lost the election of 1840 but squeaked in their own nominee anyway in February of 1841. Four years later, Tyler and the Whigs lost the election but squeaked in their own nominee anyway in February of 1844. Turnabout, as they say, is fair play.
This discussion, of course, would be incomplete without the most consequential post-election nomination: John Marshall.
You know the story. John Adams and the Federalists got beat by Thomas Jefferson and the Democratic-Republicans in 1800, though the Federalists managed to hold on to the Senate. Sitting Chief Justice Oliver Ellsworth got sick and resigned shortly after the election. Adams’s first pick, John Jay, declined to resume the post he had midwifed from 1789 to 1795. Adams then nominated Marshall, his secretary of state, on January 20, 1801. The Federalist-controlled Senate confirmed by voice vote a week later. A few weeks after that, Adams engaged in the shenanigans that led to Marbury v. Madison, and the rest is history. Marshall sat on the court for the next 34 years, outliving the Virginia Dynasty and taking on the Jacksonian Revolution.