As if 2020 has not been bad enough, with just a few weeks before the presidential election, the beloved Supreme Court justice Ruth Bader Ginsburg passed away. Not only did we lose a judicial icon, but her death caused a vacancy on the high court that is turning into one of the biggest fights of the Trump administration.
Back in 2016 when a justice passed, Republicans argued that a president in his last year should not nominate a new judge but should wait for the voice of the people in the form of the new president to make the next pick. At the same time the Democrats in 2016 insisted it was not only the president’s right but his duty to make the next selection.
The differences this time are, first, both parties flipped their stances, somehow realizing they were wrong in 2016, and, second, this time Republicans have the numbers in the Senate to make the confirmation. The constitutionality of Trump’s decision to put forth a judge has been questioned. Historically and legally speaking, however, Trump does have the right and it has been done before.
There is no legal issue with Trump nominating a new judge; it is perfectly acceptable under the Constitution. The Democrats would have done so in 2016 if they controlled the Senate. The question is not a legal one but an ethical or fairness one. Is it right for Republicans to nominate a judge now when they blocked Obama’s pick in 2016? This question cannot be decided in court but, rather, in each person’s conscience. If it helps, we have seen a last-second appointment before and by a well-respected Founding Father.
I have written about the Election of 1800 so many times that most of my readers know the details by heart. Suffice it to say, it is my favorite election and it was one of the most heated and contentious elections ever. John Adams, equal only to Washington in importance when it comes to our freedom, lost his bid for a second term to his nemesis, Thomas Jefferson. Adams did not take it well. In sports parlance, he took his ball and went home by not even sticking around for Jefferson’s inaugural. However, before he left, he decided to leave Jefferson a small parting gift. This is important for the modern issues as well: after an election, the losing president is still the president until the next inaugural. In other words, even if Trump loses in November, he can still perform all his presidential duties up until January 20. What Adams did in 1801 after he lost was not only install a new Chief Justice, John Marshall, but he also created a new level of federal judge positions so he could fill them with Federalists. By packing all the federal judgeships with his party, he took away Jefferson’s ability to nominate judges on any level for the near future. What was most amazing is that Adams made 42 nominations and the Senate confirmed them as a batch just two days before Adams left office. All but three of the “Midnight
Judges” took their places on the bench, but because of the lateness of the appointments, three never received their commissions. The commissions were basically left on the desk of the new Secretary of State, James Madison with a yellow sticky note saying “Please give these out.” Madison, upset by the new appointments, conferred with Jefferson who agreed not to distribute the remaining commissions. However, one of the judges, William Marbury, upset by Madison’s refusal, sued him for his papers. This became one of the most important court cases in history, Marbury v. Madison, but that is a story for another article.
Jefferson did not take Adam’s actions well. He blocked the courts from taking up any cases until 1803 out of spite. I am not sure it is helpful or not to see our Founders acting as petty as our current political leaders. Yet what we can learn is that in some ways politicians have not changed. Two days before he left office, Adams got 42 new judges pushed through. Jefferson then refused to allow the court to hear Marbury’s case for more than a year and did succeed in getting the last three blocked from the bench. What Adams did was perfectly legal; the only question for Adams, like Trump, is whether it was ethical. Both seem to think it is.
Dr. James Finck is a Professor of History at the University of Science and Arts of Oklahoma and Chair of the Oklahoma Civil War Symposium. For daily history posts Follow Historically Speaking at Historicallyspeaking. blog or on Facebook.