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In urging senators to act on Garland’s nomination, Franken messes up a history lesson

To hold up John Marshall’s confirmation as an example of better days when senators put the intent of the Framers above partisanship stands history on its head.

Minnesota’s junior U.S. Sen. Al Franken took to the Senate floor this week to denounce and mock Senate Republicans who have decided to use their current majority to block the nomination of Merrick Garland to the Supreme Court without even giving him a hearing or a vote.

Franken called the Republican position “preposterous” and mocked them hard, putting on a little scene in which he gave comedic voice to members of the founding generation of the American republic to show how much they would want the Republicans to, if not confirm Garland, at least act on the nomination.

To dramatize his disappointment with the Senate Republicans for blocking any action on the Garland nomination, he chose a historical anecdote that actually, in my view, really set the precedent for what the Republicans are doing, namely use partisan muscle to pack the court (and other federal judicial positions) with like-minded judges and justices in lifetime posts.

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Although his denunciation of the Republicans was steeped in history, his history lesson left out a lot of relevant stuff — stuff so relevant that I would say he messed up the history lesson pretty badly, so badly that he stood the lesson on its head, to make it mean the opposite of what it really meant when it occurred.

What the Repubs are doing on the Garland nomination is wrong (according to me) but not against the rules, including the rules set forth in the U.S. Constitution. The Constitution says that a presidential nominee to the court requires the consent of the Senate. Still, the text fails to specify that the Senate is required to hold hearings and/or take a vote. The Democrats’ case would be stronger if the constitutional text suggested that the Senate is obliged to act. It just doesn’t.

John Marshall’s confirmation

Franken based much of his floor speech on the confirmation of Chief Justice John Marshall in 1801. Marshall was confirmed after the presidential election of 1800 had already occurred, an election that resulted in the ouster of incumbent Federalist Party President John Adams and the victory of Thomas Jefferson of the Anti-Federalist/Democratic-Republican Party, but before Jefferson and his fellow partisans had taken office.

According to Franken, this example shows the anti-constitutional hypocrisy of the Senate Republicans who are refusing to consider the Garland nomination. Today’s Republicans say that when a nomination is made so late in a president’s term, the Senate should not act on the nomination until the public has had a chance to make its feelings known, in the November election, about who should be president and which party’s philosophy should be reflected in Supreme Court appointments.

The current Senate Republicans claim that this attitude is rooted in history and has many precedents. Actually, there are roughly zero precedents, and they have been unable to cite one in which the Senate refused to consider an appointment on this basis. Their historical case is hooey and I have said so before with chapter and verse.

But in denouncing their hooey, Franken committed a new historical hooey of his own. He wants to argue that in 1801, when the Senate still included many men who had participated in the drafting and ratification of the Constitution, the Senate not only confirmed a Supreme Court nominee very late in President Adams’ term, but did so after the election had already occurred and the public had called for a change of parties in the White House.

That’s technically true — and it would be a great case for Franken to cite if it showed senators rising above partisanship to respect the right of a sitting president to nominate a new justice. But the real story makes the opposite point.

Franken said on the floor that if today’s Republicans are right to deny Garland a vote, then the Senate in 1801 should have left the Supreme Court vacancy open and waited for the newly elected Senate to take up the matter. But that’s actually kind of backward. Protestations of high principle notwithstanding, today’s Republicans are denying Garland a vote in hopes that a Republican will win the next election. The partisan political motivation in 1801 would have pointed in exactly the opposite direction and, whether on politics or on principle, the Senate in 1801 acted in concert with the partisan interests of the majority.

In 1801, the Federalists, having just lost the election but still controlling both the (brand new) White House and the Senate, used their waning days in office to pack the federal judiciary with Federalists. The nomination and confirmation of Marshall as chief justice, who was himself a highly partisan Federalist, is a key part of that story.

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Marshall, who was Adams’ secretary of state at the time, was confirmed on a voice vote in a Senate still dominated by Federalists but soon to be taken over by Jeffersonian allies. Because it was a voice vote, we can’t know whether the anti-Federalists in the Senate agreed. Franken’s argument seems to be that the anti-Federalists at least let the nomination come to a vote, although the record is not complete enough to show whether they objected, and they couldn’t have blocked the vote if they had tried.

This will sound strange to modern ears, but Marshall, after being confirmed and sworn in as chief justice, remained in office as secretary of state at a time when that job included doing the paperwork for presidential appointments. Yes, Marshall handled the paperwork for his own confirmation and then held both jobs across two branches of the federal government — chief justice and secretary of state — as his party, the Federalists, rammed through a bill creating a significant number of new federal judgeships (which, under the Constitution, carried lifetime terms) and then rammed through the nomination and confirmation of loyal Federalists to those posts.

‘Midnight Judgeships’

This story has entered history as the “Midnight Judgeships.” It was ugly, raw partisanship at its worst.

Other than Adams himself who made all the appointments, the key man in charge of getting it all done was John Marshall in his capacity as secretary of state, while the Federalist-dominated Senate kept cranking out the confirmations.

Marshall has come down to us as the first great chief justice. But he was also a partisan hack and he used his lifetime appointment to represent his party for decades, even after the party went out of existence.

Even in his most famous ruling — Marbury vs. Madison — he should have recused himself because he was deciding the case of Marbury’s botched appointment as a federal magistrate, an appointment in which he himself had been involved in the botching.

I’ve written about all this before and will raid that previous version for this paragraph, which described how President Jefferson felt about what had been done in the waning days of his predecessor’s term:

“Jefferson was furious about the Midnight Judgeships, writing to a friend that the defeated Federalists had ‘retired into the judiciary as a stronghold… There the remains of federalism are to be preserved and fed from the treasury, and from that battery all the works of Republicanism are to be beaten down and erased by a fraudulent use of the constitution which has made judges irremovable, they have multiplied useless judges merely to strengthen their phalanx.’”

Members of Franken’s staff who helped with his presentation and who spoke on “background,” which means that they can’t be quoted directly and that their names are omitted herein, pushed back on my interpretation. The Midnight Judgeships occurred after the Marshall confirmation, they said (and it’s true), and it was the Midnight Judgeships that really touched off the hyper-partisanship. They argued that in conflating the Marshall confirmation (which was the topic of Franken’s remarks) with the Midnight Judgeships, I might be overstating the partisanship present at the time of the Marshall confirmation.

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Maybe so. As Franken mentioned on the Senate floor, we don’t have records of the discussion on the Senate floor during the Marshall confirmation. Franken suggests, but acknowledges that he can’t prove, that the Jeffersonians in the Senate went along with the appointment, or at least went along with taking a confirmation vote, because they understood that the “advice and consent” language of the Constitution required that they do so.

To me, the fact that the same lame-duck Federalist Senate that passed the Midnight Judges Act had just approved the very partisan Marshall as chief justice links the two cases. The fact that both votes were taken by a Federalist-controlled Senate that knew it was about to lose power imbue both actions with a strong odor of partisanship.

For Franken to hold it up on the Senate floor as an example of better days when senators understood the intent of the Framers stands the real history on its head, even if he did so in the service of pressuring Senate Republicans to drop their own historical nonsense and either give Garland a hearing or at least acknowledge their purely partisan motives for not doing so.

Myth and reality

On some level, we are encouraged to view nominations and confirmations of Supreme Court justices in the category of items that were supposed to be above partisanship. That’s more myth than reality, but the current situation is undermining even the power of the myth.

By the way, soon after the Jeffersonian Democratic-Republicans took office, they repealed the Midnight Judges Act. After Marshall, no Federalist was ever nominated to the Supreme Court again, but Marshall remained chief justice for an impressive 34 years until his death in 1835.

If you would enjoy watching Franken’s 12-minute Senate floor speech that set this off, it’s here.

And Franken’s office provided this statement, giving Franken’s version of what he was driving at in his floor statement:

“My speech was aimed at Senate Republicans who claim to revere the Founding Fathers and the Constitution, but are nonetheless refusing to fill a vacancy because they believe the President is a ‘lame duck.’ They say they are following some kind of longstanding principle — that ‘the American people should decide’ in the next election who the next Supreme Court justice is. Well, in my remarks yesterday, I gave lie to the legitimacy of this so-called principle. We’ve seen this before: John Marshall was nominated by an actual lame duck President — and one who had lost. And the Senate — which included five Founding Fathers — quickly considered his nomination. Whether they were acting out of fidelity to the document they wrote 13 years earlier, or whether they acted out of sheer partisanship, we’ll never know — there is no record of the debate. But we do know that today’s Republicans are putting politics before their constitutional duty by citing an imaginary principle and acting as if it’s some sort of precedent.”