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Is Kamala Harris’s ‘little history lesson’ about Lincoln’s Supreme Court vacancy true?

The Washington Post logo The Washington Post 10/8/2020 Gillian Brockell
Abraham Lincoln wearing a suit and tie: President Abraham Lincoln sits for a portrait February 5, 1865. (Photo by Alexander Gardner/U.S. Library of Congress via Getty Images) © Library of Congress/Getty Images President Abraham Lincoln sits for a portrait February 5, 1865. (Photo by Alexander Gardner/U.S. Library of Congress via Getty Images)

The question from vice presidential debate moderator Susan Page was actually about pre-existing conditions.

But Vice President Pence ignored it because he wanted to raise the specter of Democrats packing the Supreme Court if former Vice President Joseph R. Biden Jr. and California Sen. Kamala Harris win the election next month.

“There have been 29 vacancies on the Supreme Court during presidential election years from George Washington to Barack Obama, and the presidents have nominated in all 29 cases,” Pence said, failing to mention his party refused to vote on Obama’s nominee, Merrick Garland. “But your party is actually openly advocating adding seats to the Supreme Court, which has had nine seats for 150 years, if you don’t get your way.”

“I’m so glad we went through a little history lesson. Let’s do that a little more,” Harris responded. “In 1864 … Abraham Lincoln was up for reelection. And it was 27 days before the election. And a seat became open on the United States Supreme Court. Abraham Lincoln’s party was in charge not only of the White House but the Senate. But Honest Abe said, ‘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 will be able to select who will serve on the highest court of the land.”

So, is that true?

Harris is correct that a seat became available 27 days before the election. And that Lincoln didn’t nominate anyone until after he won. But there is no evidence he thought the seat should be filled by the winner of the election. In fact, he had other motives for the delay.

On Oct. 12, 1864, Chief Justice Roger B. Taney died at the age of 87. He had been chief justice for nearly 30 years but will always be best-known – or rather, notorious – for writing the majority opinion in the Dred Scott v. Sandford case, in which he declared that Black people were inferior and “had no rights which the White man was bound to respect.” (The House voted to remove a bust of Taney from the U.S. Capitol over the summer amid the George Floyd protests.)

Taney had been sick for years, so it didn’t come as a surprise to Lincoln that he might have the opportunity to name his own chief justice, according to Michael Kahn, who heads the board of directors of President Lincoln’s Cottage. But Lincoln was preoccupied with both his campaign and the Civil War — Sherman’s troops had just captured Atlanta and would soon march to the sea. He told his aides he wouldn’t nominate anyone immediately, because he was “waiting to receive expressions of public opinion from the country,” according to historian Michael Burlingame in “Lincoln: A Life.

But that didn’t mean he was waiting for ballots so much as the mail. Letters flooded in from all over the country. What about Secretary of War Edwin Stanton? some suggested. Or associate justice Noah Swayne? Francis P. Blair recommended his son Montgomery, the postmaster general. Attorney General Edward Bates recommended himself.

And then there was Samuel P. Chase. Chase was a former senator, governor of Ohio and Secretary of Treasury who, according to Burlingame, thought he was destined to be president. He had vied unsuccessfully against Lincoln for the Republican nomination in 1860. Though Lincoln disliked him, Chase had a lot of supporters. Chase’s opponents told Lincoln all the nasty thing Chase had said about him behind his back.

The overarching effect of the delay is that it held Lincoln’s broad but shaky coalition of conservative and radical Republicans together. And it kept rivals like Chase in line. Chase, who had often been critical of Lincoln in the past, immediately began stumping for the president across the Midwest, sparking rumors of a secret deal, according to Kahn.

Congress was in recess until early December, so there would have been no point in naming a man before the election anyway. Lincoln shrewdly used that to his advantage. If he had lost the election, there is no evidence he wouldn’t have filled the spot in the lame-duck session.

Lincoln was, of course, reelected. And the day after the Senate was back in session, he nominated Chase for chief justice. He hoped the august appointment would “neutralize” Chase’s designs on the presidency. (It didn’t.)

So Harris is mistaken about Lincoln’s motivations in this regard. But there’s one thing Lincoln definitely supported that Harris has yet to weigh in on: Court-packing.

In 1863, he and Republicans in Congress passed a law to create a tenth Supreme Court seat for largely partisan reasons. All told, Lincoln appointed five justices in just four years and five weeks as president.

Read more Retropolis:

Mail-in ballots were part of a plot to deny Lincoln reelection in 1864

FDR tried to pack the Supreme Court during the Depression. It was a disaster for him.

Adams chose a new chief justice just before leaving office. Jefferson was furious.

In 1841, pneumonia killed the president in 31 days. His doctors were accused of incompetence.


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