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.