The presidential election of 1800, in which incumbent President John Adams was defeated by his own Vice-President Thomas Jefferson, is relevant to Trump’s nomination of Amy Coney Barrett to the Supreme Court.
Adams lost in the Electoral College to both Jefferson and Aaron Burr, who tied. The election went to the House of Representative, where after 36 ballots Jefferson won. That election was as bitterly contested as any in our history, with the exception of 1860 which triggered the Civil War.
1800 was the first presidential election in which organized parties were a real factor. Adams, and George Washington before him, represented what emerged as the Federalist party who believed in a strong central (federal) government. The Federalists had lead the campaign to ratify the Constitution, replacing the weak central government dominated by the States under the Articles of Confederation.
Jefferson represented a coalition of those who opposed a strong central government that became known as the “Democratic-Republicans”, which morphed into the Democrat Party. After Adams lost the election in November, he nominated his own Secretary of State, John Marshall, to fill the newly vacated position of Chief Justice of the United States Supreme Court. Marshall was quickly confirmed by the Federalist controlled Senate before Jefferson’s inauguration.
So even if President Trump were to lose in November, there is undisputed constitutional precedent for Trump to nominate, and for the Republican Senate to confirm, any Supreme Court vacancy that occurs before the inauguration.
Marshall served as Chief Justice until 1835, during which he authored some of the decisions which still shape the Court’s role in government, and the law of the land. Arguably the most significant of those decisions was Marbury v Madison, decided in 1804, in which Marshall enshrined the doctrine of “judicial review” as a bedrock principle of our constitutional law.
Judicial review is the basis upon which Trump’s opponents try to get judges to issue injunctions against his actions. To thwart Trump, Democrats rely on a legal doctrine established by a Supreme Court Justice who was appointed by a President after he lost his bid for re-election to a Democrat. Those same Democrats now claim Trump can’t fill a Supreme Court vacancy in an election year. The irony is eclipsed only by their ignorance of history.
The Democrats whine that this is no different than Merrick Garland’s nomination by Obama during his last year in office, whom the Senate refused to consider. Aside from the fact Garland’s rejection established no constitutional legal precedent whatsoever, there is a distinct difference. Obama was a Democrat, but Republicans controlled the Senate when Garland was nominated. Conversely, the presidency and Senate are now both Republican, just as at the time of Marshall’s nomination both were Federalist.
One of the political phenomena our founders feared would be the most destructive to our free republic was what they referred to as “faction” — what we now call party politics. The Federalist Papers, the seminal source on the intention of the drafters of our federal Constitution, are replete with references to faction, and how to keep it in check. The system of ‘checks & balances’ built into our Constitution was designed to defuse the detrimental effects of faction.
Naively, perhaps, the otherwise brilliant minds who conceived our Constitution intended the judicial branch of government to be above party politics. Party politics should not be a factor in judicial appointments. Theoretically, judges should be selected solely on their legal scholarship, and adherence to the rule of law.
When John Marshall was appointed, no one questioned his legal acumen. Even though the timing of his appointment was obviously political, his qualification to be Chief Justice was undisputed. The Jeffersonians did not claim the appointment was a “constitutional crisis” — not even those of Adams opponents who were among the men who wrote the Constitution… including James Madison, considered by many experts as ‘the father of the Constitution’ …and the ‘Madison’ in Marbury v Madison.
Even though Madison had prevailed in that case, in doing so Marshall ingeniously endowed the Supreme Court with the authority to limit Jefferson’s agenda. But the thought of impeaching Marshall, or trying to claim his appointment was “illegitimate”, never seems to have even crossed anyone’s mind.
Compare that with one Democrat senator who refuses to even interview Barrett because he says her nomination is “illegitimate”. (He also lied about serving in Vietnam.) All that matters is Barrett’s intellectual ability to be a Supreme Court Justice, about which there is no credible doubt.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.