The Facts
Lincoln's 1864 Supreme Court Nominee
I reviewed the most comprehensive selection of Abraham Lincoln’s speeches and writings and there is no evidence he said he should wait until after the election to tender his nominee for Supreme Court Justice.1 Lincoln had to wait to present his nomination since congress was not in session again until after the election. The 38th Congress was in session Dec 7, 1863 to July 4, 1864 and did not resume duties until Dec 5, 1864 (Dec 4, 1864 – March 3, 1865). Chief Justice Roger B. Taney died on Oct 12, 1864. Lincoln nominated Salmon P. Chase as Chief Justice on December 6, 1864, the day after Congress resumed its duties and the Senate was in session.
- The Facts:
- 1. Lincoln did not say he should wait to present his nominee for Supreme Court Justice.1
- 2. Supreme Court Chief Justice Roger B. Taney died on Oct 12, 1864.2
- 3. Congress was not in session in October or November 1864 prior to the Presidential election on November 6, 1864.3
- 4. Lincoln nominated Salmon P. Chase for Supreme Court Chief Justice on December 6, 1864, the day after Congress returned to session and the same day he delivered his Annual Message to Congress.4 Chase was confirmed on the same day Lincoln nominated him.
- 5. Lincoln nominated five Supreme Court justices, including one Democrat. All were confirmed within 7 days of nomination. 5
- 6. The Constitution requires the president to submit nominations to the Senate for its advice and consent.6
- 7. Nomination is not a guarantee of confirmation. The Senate has rejected 12 nominees, 12 have been withdrawn, 3 postponed and no action taken 10 times. 4,7
- 8. President Obama demanded the Senate hold hearings on his nominee for the Supreme Court.8
- 9. The 38th Congress Senate was 66% Republican, giving President Lincoln an overwhelming majority probability of his candidate being confirmed.9
- 10. Chief Justice Roger Taney delivered the Dred Scott case majority opinion that argued that Scott was a slave and as such was not a citizen and could not sue in a federal court and that Congress had no power to exclude slavery from the territories and slaves could not become citizens.
It seems incomprehensible to me that Abraham Lincoln, a man who dedicated and even gave his life for the cause of equality of all individuals would choose not to replace the man who oversaw the Dred Scott decision, knowing he had a 66% majority in the Senate and his other four Supreme Court nominees had been swiftly confirmed. To me the real explanation is that he never said it was better to wait, but he had to wait since congress was not in session.
Sources:
1. Lincoln, Speeches & Writings, 1859-1865. Vol. I 10/1989 Library of America. Abraham Lincoln. Edited by Don E. Fehrenbacher. Trade ISBN 0-940450-63-1
2. https://www.britannica.com/biography/Roger-B-Taney
3. https://history.house.gov/Institution/Session-Dates/30-39/
4. https://supremecourthistory.org/timeline_SCOTUSAppointments.html
5. http://www.abrahamlincolnonline.org/lincoln/education/supreme.htm
6. https://constitution.congress.gov/browse/article-2/section-2/
8. https://www.huffpost.com/entry/obama-scotus-nominee_n_56c39f2be4b0c3c550530723
9. 9. https://en.wikipedia.org/wiki/38th_United_States_Congress