President Lincoln Appoints a Successor to Roger Taney

 

Vice Presidential nominee Senator Kamala Harris (D.Ca.) stated in the Vice Presidential debate of October 7, 2020, that Abraham Lincoln did not appoint a Supreme Court nominee close to his re-election because such a nomination would have been unfair.  She badly mangles the relevant history in making this claim.

Chief Justice Roger Taney died on October 12, 1864.  At 87 he still holds the record of oldest serving Chief Justice.  His tenure as Chief Justice at 28 years was the second longest, surpassed only by that of John Marshall.

Nominated as Chief Justice by his friend President Andrew Jackson, his tenure is considered by historians to be highly significant for the Court.  Although he had authored many important decisions, he is remembered today only for one:  Dred Scott.  Taney, a slave owner, had mirrored the tragic trajectory of the views of the South in regard to slavery in his own life.  As a young man he regarded slavery as a blot on our national character, as he said in his opening argument in defense of a Methodist minister accused in 1819 of inciting slave insurrections.  He emancipated his own slaves.  However, by the time he authored the Dred Scott decision in 1857 he would write:

It is difficult at this day to realize the state of public opinion in regard to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted; but the public history of every European nation displays it in a manner too plain to be mistaken. They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far unfit that they had no rights which the white man was bound to respect.

Taney thought that the decision in Dred Scott would settle the slavery issue in regard to the territories and remove it from politics.  Instead the decision inflamed public opinion North and South and manifestly helped bring on the Civil War.  Taney lived to see his nation riven by Civil War and an administration in power dedicated to restoring the Union and abolishing slavery, and more than willing to ignore the paper edicts of Taney’s court when necessary.  Old and sick, Taney remained on the bench,  unwilling to have Lincoln name his successor, a living relic of a bygone era.

Taney had watched in bitter frustration as Lincoln appointed four justices to the Court.  With Taney’s death, Lincoln had his fifth and final appointment.

Lincoln did not appoint a replacement because Congress was not in session.  After Congress came back into session on December 5, 1864, Lincoln nominated Salmon P. Chase, his former Secretary of the Treasury to be the new Chief Justice on December 6.  The Republican controlled Senate confirmed him the same day.

The most striking contemporary mention of Roger Taney was by the late Justice Antonin Scalia in his dissent in Planned Parenthood v. Casey:

 

There is a poignant aspect to today’s opinion. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation and of our Court. “It is the dimension” of authority, they say, to “cal[l] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Ante, at 24.

There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer, and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court, and its soon-to-be-played-out consequences for the Nation–burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

It is no more realistic for us in this case, than it was for him in that, to think that an issue of the sort they both involved–an issue involving life and death, freedom and subjugation–can be “speedily and finally settled” by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.

Published in: on October 9, 2020 at 5:30 am  Comments (2)  
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2 CommentsLeave a comment

  1. Reblogged this on Practically Historical.

    • Thanks!


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