The Judicial Bookshelf DONALD GRIER STEPHENSON JR. Noon-hour events at the Capitol on January 20, 2017, were a reminder that inauguration of an American President is as remarkable as it is routine. In this distinctly republican rite, the Chief Executive-elect publicly subordinates himself to the funda mental law of the land. As the Constitution dictates, “Before he enters on the Execution ofhis Office, he shall take the following Oath or Affirmation: ‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’”1 This exaction of constitutional fealty from Donald J. Trump by ChiefJustice John G. Roberts, Jr., was remarkable because the variety of political systems, experiences, and cultures across today’s globe vividly illustrates that the seamless and peaceful transfer of authority from one political party or individual to another is not everywhere always a foregone occurrence. Correspond ingly, the January event in 2017 was routine in that, from the outset of government under the Constitution and with the notable and tragic exception of 1860, the defeated party or individual and assorted partisans have ac cepted, if not embraced, the judgment rendered by the electoral process. In short, the rite is nothing less than a reaffirmation of the rule of law. Acceptance of defeat by the incumbent party was the result even in 1800 when the notion of a peaceful shift of control in a country founded on the principle of govern ment by the “consent of the governed”—the phrase is found in the Declaration of Independence—was first put to the test at the presidential level. The assumption of authority by Thomas Jefferson and the Democratic-Republicans from John Adams and the Federalists marked the world’s first nonviolent transfer of power from the vanquished to the victors as the result of an election.2 Given the stark partisan differences that had crystallized in the short time since ratification of the Constitution and the fact that finalization of the election required intervention by the House of Representatives to break an Electoral College tie, this outcome was a greater achievement than is sometimes acknowledged. “Partisanship prevailed to the bitter end and showed no signs of abating,” THE JUDICIAL BOOKSHELF 213 according to one historian who has revisited this critical and precedent-setting election. “Over the campaign’s course, George Wash ington’s vision of elite consensus leadership had died, and a popular two-party republic... was bom.”3 Among the powers that devolve upon a person when the presidential oath is taken, few are more consequential than what is conferred by the second paragraph of Article II of the Constitution, that the “President.. . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges of the supreme Court ...” Thus, as with some aspects of foreign policy, the Constitution made the selection of Justices a shared responsibility, decreeing a two-step process of selection and confirmation. The result has been that, in determining those who sit on the High Court, the House of Representatives is left completely out of the process. Representatives might admire or oppose those who are chosen, but they have no institutionalized role in the selection, consideration, or approval. Yet, whether the composition of the judiciary was to be positioned entirely in the hands of the executive, as proposed by the New Jersey Plan at the Philadelphia Convention, or divided between the President and part of Congress as the Framers ultimately chose, the central focus has understandably re mained less on the process itself and more on those whom the process has placed on the Bench. Inauguration Day presented the forty-fifth President with an uncommon situation for an incoming Chief Executive: existence of an empty seat on the Supreme Court. Some 188 years earlier, Andrew Jackson had found himself in a similar position in March 1829, with respect to Justice Robert Trimble’s seat, which remained unfilled. President John Quincy Adams had nominated former Senator John Crittenden of Kentucky in December 1828, but in February, rather than approve a Whig, the Democratic...