A reminder that the awful mess we are in right now is not the awfullest mess ever

Henry Stanbery
Mathew Brady/U.S. National Archives and Records Administration
After the impeachment crisis, an opening occurred on the Supreme Court, and President Andrew Johnson nominated his friend and former attorney general, Henry Stanbery, to fill the seat.

The nomination and confirmation of Brett Kavanaugh to the Supreme Court has been awful to watch, procedurally and substantively. It is now not just possible but easy to construct a scenario (notwithstanding the imminent midterm elections) of the complete Trumpification of the U.S. government across all three branches. (We’ll see whether the results of the midterms changes that fact, as to either house of Congress.)

But, sometimes, being a history nerd helps me avoid the extreme awfullizing that leads one to assume that the bad stuff of the moment is setting a record for badness. I wrote, the other day, a brief overview of Supreme Court nominations that had failed. There were more of them than I would have guessed (and at that moment it seemed possible that Kavanaugh’s might be one more).

But I didn’t include a pretty impressive fact from one of those failed nomination cases. And that fact is much closer than last week’s developments to a breakdown, almost a collapse, of the American system of checks and balances. It isn’t as famous as it should be. It comes from the immediate post-Civil War, post-Lincoln assassination period. And it’s a case in which Congress not only turned down a nominee to the Supreme Court, but eliminated the vacant position so that the president couldn’t nominate another judge, and then went further.

As you know, President Lincoln was assassinated in April of 1865, just days after the Civil War ended. (The Civil War, and the Lincoln assassination are two pretty awful things right there, which should help us keep other awfulnesses in perspective. But you already know about those two.)

In seeking re-election in 1864, while the Civil War was still being fought, Lincoln had chosen for his running-mate Andrew Johnson, a southerner and a Democrat, which may have seemed like a good idea at the time as a gesture toward national reconciliation. Then the assassination made Johnson not just a gesture; it made him president.

The Republican majority in Congress and Lincoln’s cabinet were horrified: at the loss of Lincoln, of course, but also at having the presidency devolve upon Johnson. Lincoln’s attorney general, James Speed, unhappy with Johnson’s rightward drift, resigned, which enabled Johnson to have at least one ally in his cabinet, his new attorney general, Henry Stanbery.

As you also probably know, the U.S. House impeached Johnson on “high crimes and misdemeanors” that were little more than policy differences, especially about how to deal with the reconstruction of the former Confederate states. Johnson’s friend Stanbery then resigned as attorney general in order to serve as Johnson’s lawyer for the impeachment trial in the U.S. Senate. As you also may know, the Senate failed (just one vote short of the two-thirds majority necessary) to convict and remove Johnson.

But here’s the fact you probably don’t know (I didn’t, until I read about it last week) but which ties this tale to the Supreme matters over which we obsessed all last week. After the impeachment crisis, an opening occurred on the Supreme Court, and Johnson nominated his friend, Stanbery, to fill the seat.

The fiercely anti-Johnson U.S. Senate, a majority of whom had just voted to convict and remove President Johnson, didn’t just reject the nomination, they abolished the seat so there was no need for Johnson to nominate anyone else. And then they went a step further. The Senate and House passed a bill to reduce the size of the Supreme Court to seven, prospectively, mandating that the current vacancy would not be filled and any other vacancy that might occur during the remainder of Johnson’s term would likewise not be filled, so he shouldn’t even bother making a nomination. (And, in fact, another vacancy did occur, and remain vacant, during the remainder of Johnson’s term.)

This was some very serious balance of powers hardball. (They passed that law, of course, over Johnson’s veto.) After Johnson was safely out of office and replaced by Republican (and war hero) Ulysses S. Grant, Congress promptly passed a law increasing the size of the court to nine, where it has remained ever since.

Okay, that’s my big fact. I find it an outrageous and, in a way, hilarious power play by Congress. It’s also a reminder that the supposedly durable balance of powers is susceptible to mischief. And, sue me if you want, I’m using it to make myself feel better that the awful mess we are in right now is not the awfullest mess ever. And we survived that one.

Comments (22)

  1. Submitted by Ray Schoch on 10/08/2018 - 10:10 am.

    Indeed, as we witnessed with Mr. Kavanaugh, Senator Graham, and others in recent weeks, even the most sober-appearing adults (see Mr. Stanbery, above) can be subject to temper tantrums. Congress reducing the size of the SCOTUS to spite Mr. Johnson is yet another example of the Congressional version. Two points to Eric (and Gryffindor) – this is a tantrum I didn’t know about.

    • Submitted by Connie Sullivan on 10/08/2018 - 11:41 am.

      After a couple of weeks of watching and listening to men throw tantrums in the Senate and its committee hearings, we women wonder if any woman, at any time, or for any reason, would be allowed to throw such a tantrum. And get away with it. Even be praised for it.

      Can you imagine– Dr. Ford yelling at U.S. Senators and throwing questions snidely back at them, as Brett Kavanaugh did? Senator Horono screaming at her colleagues the way her male peer, Senator Graham, did?

      No. I didn’t think you could imagine it.

  2. Submitted by Hiram Foster on 10/08/2018 - 11:18 am.

    Are we in the early stages of the awfullest mess ever?

  3. Submitted by Erik Granse on 10/08/2018 - 11:21 am.

    “I find it an outrageous and, in a way, hilarious power play by Congress.”

    I’m not so sure it’s outrageous; there’s nothing sacrosanct about the number of justices on the Court, and it seems like a reasonable way for Congress to deal with a terrible president.

  4. Submitted by John Evans on 10/08/2018 - 11:44 am.

    Fair enough. But neither should we be to squeamish in the face of the reality that drastic structural changes may well be necessary to restore democracy.

    • Submitted by Marc Post on 10/08/2018 - 01:36 pm.

      We don’t live in a democracy. The US of A is a republic.

      Two of the three branches of our government are not elected by the popular vote. The POTUS is elected by the electoral college. The SCOTUS is appointed, sometimes and as in this current POTUS, by a President who lost the popular vote.

      I don’t think we need all that radical of a change. If the States would enact the National Popular Vote https://www.nationalpopularvote.com/ , then we would have an executive branch elected by a plurality of voters.

      That would also mitigate the SCOTUS problem, although I would fully support voting for SCOTUS judges. We’re finally accepting the reality that they are partisans, so let’s just vote nationally for them too.

      The current disaster is directly caused by these issues. Until they are fixed, we only give lip service to democracy.

      What I don’t get is why the dems are not campaigning on the national popular vote issue. Our democracy is being subverted. We are living under the tyranny of a minority. We can end this in short order. And MN hasn’t even taken up the issue!

      • Submitted by Paul Brandon on 10/08/2018 - 02:24 pm.

        The problem is that changing the election system nationally would require an amendment to the Constitution (a 2/3 vote, I believe) which would in turn require that State representatives who benefit from the current system would have to vote to change it, in many cases losing their seats.
        We’re 250 years too late.

        • Submitted by Marc Post on 10/08/2018 - 02:57 pm.

          Follow the link above. It does NOT require changing the constitution. Each State decided how to allocate it’s electoral votes. The States can fix this.

          • Submitted by Paul Brandon on 10/08/2018 - 04:17 pm.

            Point taken.
            It still requires state legislators to potentially reduce their individual influence. That’s the roadblock.

      • Submitted by Karen Sandness on 10/09/2018 - 11:33 pm.

        For the past five years or so, I have seen more and more right-wingers declare, “The U.S. is a republic, not a democracy.”

        Nope. It’s both a republic (a country without a monarchy) and an indirect democracy (people vote for representatives to make decisions). At least that’s how it is supposed to be, although with Big Money buying pet politicians these days, it’s hard to know whom the representatives are really representing.

        Iceland and Finland are republics and indirect democracies, but Norway, Sweden, and Denmark, all of which are indirect democracies, are not republics, because they have a hereditary king or queen as head of state. South Korea and Taiwan are republics and indirect democracies, but Japan is an indirect democracy and not a republic, due to its emperor.

        On the other hand, China, Cuba, Vietnam, Belarus, and Uzbekistan are republics, too, so just being a republic is nothing to brag about.

        I suspect that “the U.S. is a republic and not a democracy” is an attempt to create a subliminal association of the the word “republic” (and by extension, “Republican”) with “true Americanism” and to brand “democracy” (and by extension, “Democratic”) as somehow suspect.

        • Submitted by John OConnor on 10/10/2018 - 09:18 am.

          I would submit that there has rarely (perhaps never) been a time in our history that “Big Money” hasn’t held sway. It is just a matter of dergees.

  5. Submitted by Harris Goldstein on 10/08/2018 - 12:20 pm.

    Tell me how:

    “didn’t just reject the nomination, they abolished the seat” then “passed a law increasing the size of the court to nine”

    is effectively any different than the Republican Senate refusing to even address the nomination of Merrick Garland.

    • Submitted by Paul Brandon on 10/08/2018 - 02:26 pm.

      In the Garland case no law was passed.
      McConnell took advantage of his quasi-legal powers as Senate majority leader.

  6. Submitted by Paul Brandon on 10/08/2018 - 01:07 pm.

    One difference–
    Johnson did not have nuclear weapons to play with.
    Weakening checks and balances now can have more serious and permanent results.

  7. Submitted by Jim Roth on 10/08/2018 - 01:23 pm.

    Our current awfulness is awful enough. I’m reminded of Minnesota’s own Sinclair Lewis’ “It Can’t Happen Here.”

  8. Submitted by Mark Viste on 10/08/2018 - 01:25 pm.

    The current mess includes climate elements that are newly awful.

  9. Submitted by RB Holbrook on 10/08/2018 - 04:17 pm.

    “I find it an outrageous and, in a way, hilarious power play by Congress.”

    I’ll give you hilarious, but outrageous?

  10. Submitted by Ron Gotzman on 10/09/2018 - 08:57 am.

    I think it is terrible what the democrats put our country through with their temper tantrums, endless campaigning and fundraising, and their scraping and clawing in a failed attempt to keep one strand of power available to them. Shame!

    • Submitted by RB Holbrook on 10/09/2018 - 11:56 am.

      Isn’t the Trump presidency just one long temper tantrum of white males whining about how unfair the world is to them?

  11. Submitted by Kathleen Murphy on 10/09/2018 - 09:31 am.

    The Kavanaugh debacle has spawned the following double standard:

    Men who throw public temper tantrums will be reinforced for their moral indignation and women who respond will be shunned for being emotional and offensive.

    To understand my point, compare the final outcome of Sen. Lindsey Graham and Judge Kavanaugh’s extraordinary misuse of the bully pulpit to the reaction toward the two women who tearfully confronted Sen. Flake on September 27, 2018. The men won their prize. The women were ostracized.

    Another dark day in our nation’s history.

  12. Submitted by Paul Udstrand on 10/10/2018 - 11:38 am.

    If the “mess” were limited to SCOTUS battles we might take comfort in history. However this is just ONE of many crises we’re facing simultaneously. It may not the “worst”, but it doesn’t matter if it’s the one that does us in.

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