Confirmation Stories: From Washington to Trump

Will Fassuliotis ‘19
Guest Columnist

When a seat on the Supreme Court vacates, the president is tasked with a great responsibility. Alone among the national government, federal judges have lifetime tenure. Each justice a president appoints is a justice that will put his or her imprimatur well after that president leaves office. Since the start of the 20th century, a justice has on average served (roughly) 13 years after the president that appointed him or her left office.[1] Since the Eisenhower administration (beginning in the middle of the 20th century), that number increases to an average of seventeen years. In other words, a president’s choice reverberates for another three or four terms after he leaves the White House.

            President Trump is unique, perhaps, in that he has prominently outsourced his decision making. Also unique is how public the decision making has been. During the campaign, he released two lists of nominees he would consider, first of eleven,[2] then twenty-one judges.[3] As President, he has maintained an updated list of twenty-five.[4] While it is certainly nothing new for potential nominees to become public (President Clinton was pretty clear he wanted Governor Mario Cuomo of New York to fill the seat Justice Ginsburg eventually would),[5] most public knowledge comes from leaked private talks, or after the fact interviews and investigations.

            In any event, to replace Justice Kennedy, President Trump has selected Judge Kavanaugh, only just added on the third list. Judge Kavanaugh is young. At 53 years old, he could easily serve twice the average length calculated above. He is, to use the abused phrase, “impeccably credentialed,” a D.C. Circuit judge for over a decade, a former clerk to Justice Kennedy, and a graduate of Yale Law School. In the hearings, he has already faced voracious criticism, and if he is confirmed, it will likely be by only a narrow margin.

            Has it always been this way? Not exactly. Take Edwin Stanton. He was the Secretary of War during the Civil War for Presidents Lincoln, Johnson, and Grant. In 1869, Grant nominated him to the Supreme Court, and the Senate promptly confirmed. Shortly after, and before he could take his seat, he passed away.

            Or take Justice John McLean. McLean was postmaster general under Presidents Monroe and John Quincy Adams.[6] During the 1828 election, he supported Andrew Jackson, who would end up defeating McLean’s old boss, J.Q. Adams. Today we might think of the postmaster as, at best, a second-tier cabinet position. However, in the 19th century the position was a potential source of large amounts of federal patronage. But at first only a potential source, as McLean favored meritocracy, and resisted wholesale staff replacement merely to reward Jackson supporters. Upset that McLean would not distribute jobs to Jacksonians, but wary of upsetting other supporters by firing him, Jackson found a solution when a vacancy arose on the Supreme Court. Kicking him upstairs, McLean was nominated and confirmed to the Supreme Court.

Justice McLean, pictured in an 1849 daguerreotype. Photo courtesy Matthew Brady.

Justice McLean, pictured in an 1849 daguerreotype. Photo courtesy Matthew Brady.

            Justice McLean is not well remembered, certainly not as well as Jackson’s last nominee, Chief Justice Roger Taney. The first Catholic (and the first non-Protestant) appointed to the Supreme Court, Taney is infamously remembered for authoring the Dred Scott decision. McLean was one of the two dissenters. Perhaps he should be better remembered.

            Finally, even the father of our nation, George Washington, was not immune to confirmation chicanery. In 1795, John Jay, the first Chief Justice, resigned from the bench to become Governor of New York. To replace him, Washington appointed John Rutledge while Congress was in recess. Rutledge was one of the original associate justices, but resigned after one year to be Chief Justice of the South Carolina courts. Rutledge served until the Senate reconvened, where it promptly rejected him, 14–10, on account of his opposition to the Jay Treaty. The more some things change, well, the more other things stay the same.

            Whoever replaces Justice Kennedy will be the 114th American to sit on the highest court in the land. I hope to share a few of the stories of how they got there. Next time, Justice Brandeis and the first public confirmation hearing.

wf5ex@virginia.edu