By John Baxter
Mitch McConnell and his Republican majority in the Senate returned from recess last week, intent on continuing to ignore Supreme Court nominee Merrick Garland. President Obama and the Democrats continue to chide the Republicans for playing politics and acting contrary to their professed (perhaps, ad nauseam) fidelity to the Constitution and respect for our nation’s founders.
So what would the founders think of this extreme partisanship? We should not assume that they would be appalled. That’s because the founders themselves immersed the court in the first titanic partisan fight of our republic — the result of which has led to where we are today: with a Supreme Court worth fighting over.
In the election of 1800, Thomas Jefferson and his Democratic-Republican Party were swept into power, and President John Adams and the Federalists (founded by Hamilton) swept out. Following campaigns of vicious personal attacks (even by today’s standards), it was the first transfer of power from one political party to another in the new republic. President Adams and the Federalist majority in Congress became our first lame ducks — voted out but still holding office, and power, until March 4, 1801. But in the weeks that followed they did all they could to transform the federal judiciary, including the Supreme Court, into their political likeness.
Two months after the election Adams nominated Federalist John Marshall to be chief justice, a vacancy that had existed since October. Although the official vote of the Electoral College was not yet known, the congressional election results did not bode well for Adams’s re-election. Undeterred, Adams submitted his nomination on Jan. 20. Seven days later, the Senate voted to confirm.
The Electoral College loss announced on Feb. 11 further energized the Federalists. With three weeks left in office, Adams signed the Judiciary Act of 1801 creating new federal judgeships. He quickly nominated, and the Senate quickly confirmed, staunch Federalists to pack the lower courts. These judges became known as “midnight judges” — appointed during the last hours of the out-going administration.
The Supreme Court did not escape further political maneuvering. The Judiciary Act reduced the number of justices from six to five, effective with the next vacancy. The object of denying Jefferson an appointment was unabashedly transparent.
Jefferson was not without blame for the political animosities. Then, just as now, the two parties battled over the balance of power between the national and state governments. In 1798 Jefferson had written resolutions for the state of Kentucky, maintaining that state legislatures had the authority to declare unconstitutional, and then nullify, federal law. He did this while being vice president!
Soon after being sworn in as president by Chief Justice Marshall, Jefferson found an opportunity to fire back at the Federalists. Not all of the “midnight judges” had received their commissions signed by Adams. Without them they could not take the bench. Jefferson was not going to deliver the commissions without a fight. William Marbury, one of the Federalist appointees, took up the challenge and sued to compel delivery.
As every civics student in America knows, the case of Marbury v. Madison established judicial review — the court’s authority to interpret the Constitution. Through masterful judicial reasoning and political savvy (Jefferson called it “twistifications”), Marshall avoided a confrontation over the commissions and simultaneously unveiled the Supreme Court as the ultimate arbiter of the constitutionality of law.
Hubris, stemming from the election of 1800, had led Jefferson to obstruct lawful appointments. The victory blinded him to the fact that constitutional powers were not put on hold during a lame-duck period. It ended up costing Jefferson’s states-rights political cause. Marshall’s decision rejected the ideology of the Kentucky Resolutions and advanced the Federalist agenda, shifting more power to the national government, and turning the judiciary into a co-equal branch of government — one controlled by Federalists.
A powerful Supreme Court was thus born out of the founders’ own partisan politics. Perhaps, therefore, they would not be surprised by today’s struggle to control a single seat on that court. But the founders would likely draw an important distinction. When the Federalists of 1801 played politics with the judiciary they did so with the backing of the Constitution. Adams’s appointments were constitutional — a fact that could not be changed by an election, even one that had just taken place. By contrast, current Republicans claim a future election, still many months away, voids an existing constitutional nomination. They are wrong.
As the founders showed us, the Constitution doesn’t pause. Elections do matter, but only from one inauguration to the next. The election of 2012 remains in effect until January. The Senate Republicans should give Judge Garland proper consideration, as the Constitution provides. They can still vote not to confirm — even if they do so as lame ducks.
John Baxter teaches United States history at Princeton High School. In 2001 he was named a James Madison Foundation Fellow.
