Lincoln and that Supreme Court Vacancy: A Deference to Democracy

Senator Kamala Harris seems to have touched a nerve among understandably anxious right-wing commentators with her reminder, at Wednesday’s vice presidential debate, that Abraham Lincoln deferred naming a new Chief Justice of the United States until the November 1864 presidential election even though the death of Roger B. Taney on October 12 opened a tantalizing vacancy a few weeks before ballots were to be cast.

According to some would-be interpreters of Civil War history, Lincoln demurred only because he was reluctant to publicly name his former Treasury Secretary, Salmon P. Chase, fearing that so liberal a choice might fracture the bipartisan coalition he had assembled for the presidential contest. After all, seeking to unite all pro-war voters, he had rebranded the Republican Party as the National Union Party, and it had chosen a Southern Democrat, Andrew Johnson, the military governor of Tennessee, as the candidate for the office that Senator Harris is seeking now. Why threaten this unifying outreach with Election Day only three weeks away? Besides, today’s conservatives have asserted, the Senate was out of session until December, making any Supreme Court choice procedurally inoperative.

The fact is the evidence abounds that Lincoln deferred his choice primarily because he understood how improper—even defiant—it would be to choose Taney’s successor with only a few weeks left before voters chose the next president.

Think of how tempting such overreach might have been even for a modest leader like Lincoln. The long-serving Taney, the protector of racial inequality, had authored the notorious Dred Scott decision seven years earlier, stating that slavery was effectively a protected national institution and that blacks had no rights that white Americans were bound to respect—ever. In 1863, Lincoln had defied the ruling with the Emancipation Proclamation, and since then had engineered the inclusion of a plank in his party’s election-year platform urging ratification of a constitutional amendment ending slavery everywhere, including the areas not covered by his landmark executive order. Conceivably, the proclamation faced a future test in the Supreme Court, so guaranteeing the elevation of a reliably antislavery man might have secured its survival.

Yet the feeling that democracy must be honored—the very rationale Lincoln had offered to fight for the survival of the Union itself—assumed primary importance. How could he defend the awesome human cost of the Civil War without bowing to the nation’s most sacred traditions?

The memoir of Lucius E. Chittenden, a confidante and colleague of Salmon Chase—the Register of the U.S. Treasury serving under Chase when he was Secretary—is dispositive on Lincoln’s appointment of Chase as Chief Justice of the Supreme Court. In his book, “Recollections of President Lincoln and His Administration,” Chittenden writes that he learned Lincoln had decided as early as June 30, 1864 to appoint Chase to succeed Chief Justice Taney, who was already in failing health. Taney died on October 12. The election was scheduled for November 8. Lincoln ultimately made the appointment on December 6. But Chittenden learned about Lincoln’s early decision and privately informed Chase of his selection on June 30. Yet, according to Chittenden, Lincoln did not feel it would be proper to name Chase before the election. Chittenden wrote: “The appointment was made in November, as speedily as was appropriate after the vacancy occurred.” The key word that guided Lincoln was “appropriate.”

What Donald (I’ve “done more for the black community…with the possible exception of Abraham Lincoln”) Trump fails to comprehend are the values of the “People’s contest” for democracy for which Lincoln lived and died. But how surprising can this be at a time when one of Trump’s most ardent supporters, Sen. Mike Lee, Republican of Utah, said, after the vice presidential debate, about the purpose of the nation: “Democracy isn’t the objective,” and referred to it pejoratively as “Rank democracy.”

Lincoln respected the separation of powers, and most importantly, the power of the people, the consent of the governed—even if emancipation was on the line. In 1864, he wanted pro-Union Democrats to vote for him for president, even if they felt unease about emancipation, but he would never have rushed or postponed appointment of a chief justice only to perpetuate his own power.

As Lincoln had said at his first inaugural in 1861: “Why should there not be a patient confidence in the ultimate justice of the people? Is there any better, or equal, hope in the world?”

Lincoln could never have imagined a black woman running for vice president of the United States. But he would have approved Kamala Harris’ interpretations of one of his noblest, and riskiest, decisions when the chief justiceship became vacant in October 1864: deferring to the judgment of democracy. That was Lincoln’s objective.

 

Sidney Blumenthal is the author of “All the Powers of Earth 1856-1860,” the third volume of “The Political Life of Abraham Lincoln,” awarded the Abraham Lincoln Institute and Lincoln Forum book prizes. Harold Holzer is the author or editor of 54 books on Lincoln and the Civil War and winner of 2015 Lincoln Prize; his latest book is “The Presidents vs. the Press: The Endless Battle between the White House and the Media from the Founding Fathers to Fake News.”

  

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About the Author(s)

Sidney Blumenthal

Sidney Blumenthal, the former assistant and senior adviser to President Bill Clinton and senior adviser to Hillary Clinton, is the author of All the Powers of Earth (Simon & Schuster 2019), the third volume of his five volume biography, The Political Life of Abraham Lincoln.

Harold Holzer

Harold Holzer is Director of The Roosevelt House Public Policy Institute at Hunter College. He is the author or editor of 54 books on Lincoln and the Civil War, winner of 2015 Lincoln Prize Holzer, and awarded the National Humanities Medal by President George W. Bush. His latest book is The Presidents vs. the Press: The Endless Battle between the White House and the Media from the Founding Fathers to Fake News.