Abraham Lincoln’s Appointments to the Supreme Court: A Master Politician at his Craft

Abstract

Abraham Lincoln’s Appointments to the Supreme Court: A Master Politician at his Craft Michael A. Kahn Abraham Lincoln appointed five men to the Supreme Court during a span of thirty-six months. Four of Lincoln’s appointments were confirmed unanimously by the Senate and the fifth received a single solitary no vote.1 The Senate acted on two ofLincoln’s appointments the same day they were received and confirmed each of Lincoln’s appointees within a week of receiving the nomination. Lincoln’s mastery over this process was an impressive achieve­ ment because he was dealing with an active and energized United States Senate. Indeed, during the 1860s and early 1870s the Senate refused to confirm the last appointment of Lincoln’s predecessor; refused to allow Lincoln’s successor, Andrew Johnson, to ap­ point any Justices (choosing to abolish the seats ratherthan let Johnson fill the vacancies); and, several years later, rejected Ulysses S. Grant’s appointment as ChiefJustice!2 Lincoln was one ofthe most brilliantpoliti­ cians in American history. Lincoln’s deft, but drivenhandling ofhis own political careerbears witness to a Machiavellian genius in the han­ dling of political matters, which has inspired generations ofbiographers. However (to bor­ row from Lincoln’s most famous speech), little noted and not long remembered is the story of how Lincoln successfully packed the Supreme Courtwith right-mindedmen while achieving a myriad ofpolitical goals along the way. Lincoln’s Views ofthe Court Abraham Lincoln ascended to the presi­ dency on apersonal platformthatwas extremely critical of the Supreme Court. During his fa­ mous debates with Stephen Douglas in 1858 and thereafterduringhis campaignforthepresi­ dency in 1860, Lincoln criticizedtheDredScott decision and aggressively advocated its rever­ sal.3 In 1860 the Supreme Court was under at­ tackbythe dominantpolitical forces ofthe North and its very legitimacy was being questioned 66 JOURNAL 1997, VOL. II Abraham Lincoln is pictured here in 1862 reading the Emancipation Proclamation to his Cabinet. Second from the left is Edward Bates, who, unlike today’s Attorneys General, had no say in the selection of nominees for the Supreme Court. In fact, when Bates asked Lincoln to nominate himself as Chief Justice (“as the crowning retiring honor of my life”) the Attorney General was turned down. Also passed over in favor of Treasury Secretary Salmon P. Chase (seated at left of Lincoln) was Postmaster General Montgomery Blair. by abolitionists and unionists who feared the Court, with its reactionary ChiefJustice and its three Southern Justices, would impede the Union cause.4 In this political (and soon to be military) environment, Lincoln’s first pronouncements as president regarding the Court were eagerly anticipated. In his inaugural address, Lincoln addressed the issue of the Court’s legitimacy and role in American life. . . . , the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by the decisions ofthe Supreme Court, the in­ stant they are made in ordinary litiga­ tion between parties in personal actions the people will have ceased to be their own rulers, having to that extent practi­ cally resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the Court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault oftheirs ifothers seeks to turn their decisions to political pur­ poses.5 Lincoln thus articulated the first tenant of his political faith: neitherthe Court nor the laws, nor the rebellious acts oftraitors, would be per­ mitted to override the people’s right to form and keep the Union. He also left himselfopen to persuasion that extreme measures, in extreme circumstances, would override even the Court’s will, but he refused to openly defy or challenge the legitimacy ofthe Court. Though Lincoln had never appeared before the Supreme Court, as a sophisticated litigator he had a healthy appreciation of its potential LINCOLN’SAPPOINTMENTS 67 power and considerable respect for its process from his background. In March 1861 Lincoln could not precisely foresee the clashes his ad­ ministration would have with the judiciary over the suspension of habeas corpus, the...