First, the hard facts. An individual is president of the United States from the moment she or he takes the oath of office in the January after the election and remains president until the next person takes that oath, except in cases of assassination or successful impeachment. The sitting president has an unquestionable right to do all the things a president does right up to the last hour of his term.
Nothing in the Constitution prevents a sitting president from appointing a Supreme Court justice in the weeks or months before the election, or even after the election — even one he or she loses — and before the next president is sworn in. In other words, President Trump is absolutely within his constitutional rights to nominate someone to fill the seat of Justice Ruth Bader Ginsburg, who died Friday, at the age of 87.
In 2016, the U.S. Senate refused to entertain President Barack Obama’s nomination of Judge Merrick Garland to fill a vacant seat on the Supreme Court. It was seven months before the 2016 election. Under our separation of powers doctrine, in which each branch of government is free to act in the way it thinks best so long as it adheres to the letter of the Constitution, the Senate was absolutely within its rights to refuse to confirm or reject Garland or even vet him.
So if President Trump nominates a new justice and the Senate confirms the appointment, not only would there be no violation of the Constitution, but it would conform to the legal doctrine that the president is invested with his full constitutional powers for the entire length of his term. There is no ebbing of his power as the election approaches or — even if he loses — during the interim between the election and the inauguration of the next president.
Second, the Constitution does not specify the number of justices who sit on the Supreme Court. Over the course of American history, the number has jumped around, from six to five and back to six, and at one point as high as 10. The number nine was set by Congress in 1869 and it has not changed since, though in 1939, frustrated by conservatives on the court, President Franklin Delano Roosevelt tried to increase the number dramatically, perhaps to as high as 15. Congress balked.
Because the Constitution is silent on the size of the court, Congress is free to change that number any time it wishes. The number of justices could be three, 30 or 300, if both houses of Congress pass the bill and it is not vetoed by the president. So if President Trump and the Senate nominate and confirm a new justice and Joe Biden wins the presidency in November, and if the Democrats control both houses of Congress, they would be perfectly within their constitutional rights to pack the court by increasing the number of justices and filling each of those seats with individuals of their own choosing.
If President Trump and the Republican Senate fill Ginsburg’s seat in the next weeks or months, the Democrats will howl, and not without reason. Four years ago, Senate Majority Leader Mitch McConnell refused to act on President Obama’s nomination of Merrick Garland, declaring that it was too close to the 2016 election, that it would be unseemly to fill the seat before the people had the chance to express their will for the future direction of the country. If this “proximity principle” was important a full seven months before a presidential election, it must be even more valid just six weeks before a national election. Unfortunately for the Democrats, what Sen. McConnell and the Republicans did in 2016 was not based on any provision of the Constitution.
It was apparently only a power play disguised as a principle and now that the situation is reversed, McConnell and the Republican leadership have reverted to another “principle,” enunciated above, that a president is entitled to do whatever his office requires or allows right up to the end of his time in office. Hypocrisy? Of course — whopping, soul-numbing hypocrisy. But that is where we are in 2020.
The Founding Fathers intended the judiciary to be the least political branch of the federal government. Since the failed Robert Bork nomination in 1987, filling a vacant Supreme Court seat has become one of the most deeply politicized events in Washington, D.C. The notion that Majority Leader McConnell would choose not to use the power he has to put a serious conservative on the Supreme Court, that he would, in the name of consistency and deference to “the people,” postpone any action on a future justice until after the Jan. 20, 2021, inauguration, sounds merely quaint in the face of the bitterly partisan political wars of our time. Nor is there any certainty that the Democrats would do the magnanimous thing if the situation were reversed.
The Democrats’ only real hope for postponement lies in the hands of a handful of Republican senators — Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, and perhaps Chuck Grassley of Iowa — who have indicated their uneasiness about punching through a nominee this side of the momentous election on Nov. 3. Without a Republican majority, no new nominee could be confirmed. But as this crisis unfolds, the Democrats will find no solace in the Constitution. They will shout hypocrisy to the skies, but their Republican adversaries are more likely to feel exultation than shame.
Everyone understands that elections matter because they distill the will of the people. If, for example, Joe Biden won by a landslide Nov. 3, and the Republicans also lost control of the Senate, it would be problematic for the outgoing Trump administration and the lame-duck Republican-controlled Senate to confirm their own nominee because it would ignore the emphatic voice of the people. It would be problematic, but it would not be illegal.
The problem of lame-duck decision-making in a democracy is perplexing and inherently frustrating. That’s one reason the date of the inauguration was moved up in 1933, thanks to the 20th Amendment, from March 4 (four months after the election) to Jan. 20 (11 weeks). Given the astounding pace of life in the 21st century, and the magnitude of presidential power, even 11 weeks seems like an eternity. The outgoing president has enormous power — think of executive orders, pardons and commutations, and judgeships.
The question of what deference an outgoing president owes to his successor is a difficult one. Thomas Jefferson believed that the outgoing executive should not hamstring his successor in any way, that it is in the interests of a republican system of government for the outgoing president to grant his successor a maximum amount of freedom to surround himself with individuals of his own stamp, to move the country in the direction of his vision (or of his party’s platform) and that the use of lame-duck power to thwart a duly chosen successor was a breach of gentlemanly decency as well as a thumbing of the nose at the American electorate. Even when he handpicked his successor and his best friend, James Madison, in 1809, the retiring Jefferson avoided making any decisions that would tie Madison’s hand. Jefferson’s extreme deference was in part a reaction to the unsmooth transfer of power that had attended his election in 1800, when he displaced his old friend John Adams in the presidency.
After it was clear that Adams had lost his bid for re-election in 1800, the discredited one-term president made a number of last-minute appointments to the judicial branch of the national government, not merely to fill vacancies but to concentrate as much anti-Jeffersonian power in the judiciary as possible so that Jefferson’s “Second American Revolution” would have a harder time changing the direction of the country. These became known as the “Midnight Appointments.”
Jefferson was doubly offended, first because he believed Adams’ appointments violated the sacred principle of popular sovereignty (elections matter); and second because he and Adams were old friends, at odds in 1800, but both ardent supporters of a republican system of government, and Jefferson felt that the ancient friendship, even in its fractured state, would cause Adams to defer to his successor. Adams was bitter. He was no longer interested in the politics of politeness and deference. In fact, he left Washington at dawn March 4, 1801, refusing to stay in town long enough to see his old friend, now temporary enemy, inaugurated in his place.
Life goes on. Soon enough, the Jefferson administration did what it could to chasten the judiciary, first by passing its own Judiciary Act (1802) that eliminated some recent Federalist judgeships, and then by impeaching two federal judges, John Pickering of New Hampshire (removed Jan. 4, 1804) and then Supreme Court Associate Justice Samuel Chase (acquitted by the Senate, March 1, 1805). Most historians believe that if the impeachment of Justice Chase had been successful, Jefferson might even have gone after Chief Justice John Marshall. The Senate’s courageous decision in the Chase case probably saved the principle of separation of powers and the independence of the U.S. Judiciary.
In April 1804, President Jefferson’s younger daughter Maria died at the age of 25. Jefferson, who had already buried his wife, Martha, and four of their six children, was devastated. Retired on a farm in Quincy, Mass., former First Lady Abigail Adams chose to break a long silence to commiserate with her former friend Jefferson. She had known Maria back in 1787, when the 9-year-old arrived in England on a ship from Virginia. Jefferson had summoned Maria to join him and her older sister, Martha, in Paris, where he was serving as the American minister to the court of Louis XVI.
Abigail Adams was immediately drawn to young Maria, whom she characterized as “a child of the quickest Sensibility, and the maturest understanding, that I have ever met with for her Years. … In short, she is the favorite of every Creature in the [Adams] House.” Mrs. Adams’ condolence letter of May 10, 1804, was sincere and heartfelt, but nevertheless somewhat stiff. She signed off with the words, “That you may derive comfort and consolation … is the sincere and ardent wish of her, who once took pleasure in subscribing Herself your Friend.” Ouch.
Jefferson replied from Washington, D.C., on June 13. After politely acknowledging Abigail’s letter of condolence, the Sage of Monticello made one of the biggest mistakes of his epistolary life. Perhaps wishing to account for the breakdown of his longstanding friendship with John Adams, Jefferson wrote, “I can say with truth that one act of Mr. Adams’s life, and one only, ever gave me a moment’s personal displeasure. I did consider his last appointments to office as personally unkind. … It seemed but common justice to leave a successor free to act by instruments (i.e., justices) of his own choice.”
Jefferson’s letter served only to enrage Abigail Adams and reopen old and deep wounds. She responded with a blistering reply July 1, 1804. “I think it a duty to explain,” she lectured. “The Constitution empowers the president to fill up offices as they become vacant. … This was done by President Washington equally, in the last days of his administration so that not an office remaind (sic) vacant for his successor to fill upon comeing into the office.” Think of this delicious moment of American history! Abigail Adams, who under our system could not vote or hold public office, the wife of a former one-term president, lecturing the eminent political theorist (and sitting president) Thomas Jefferson about constitutional doctrine!
Abigail Adams was right, of course, and Jefferson was wrong. She also knew enough to play the ultimate trump card — the practices established by the great and untouchable George Washington as president. Just for good measure, she went on in her July 1 letter to excoriate Jefferson for hiring the scurrilous pamphleteer James Callender to write dirt about her husband in the run-up to the election of 1800. After the election, Jefferson and Callender had a falling out, and Callender went on to break the notorious Sally Hemings story in September 1802 in a Richmond, Va., newspaper. Mrs. Adams could not help exulting over the karma. “The serpent you cherished and warmed, bit the hand that nourished him, and gave you sufficient Specimens of his talents, his gratitude, his justice, and his truth.”
At this point, Jefferson gave up and slipped away into a stoic silence. John Adams’ “Midnight Appointments” proved to be of enormous consequence in American history. The most important of those late-term nominees was John Marshall, who served as chief justice of the Supreme Court for 34 years. He is widely regarded not only as the greatest justice in American history but the one who interpreted the Constitution as creating a strong national government, not a confederation of sovereign states.
That was his greatest achievement, and it altered the course of American history. The other midnight appointee of consequence was one William Marbury, who had been appointed by Adams to a minor post. In the haste and chaos of the last days of the Adams administration, Marbury’s commission had not been physically delivered to him, so Jefferson decided to discard the document, even though Marbury had been informed by Adams that he was to be nominated. As every first-year law student learns in constitutional law, Marbury sued the Jefferson administration under a Writ of Mandamus to deliver up the commission.
Justice Marshall’s decision in the case (Feb. 24, 1803) gave poor Marbury no relief, but it was in that famous decision that Marshall declared that the Supreme Court would be the final arbiter of which laws passed by Congress are constitutional and, more importantly, which are unconstitutional and therefore of no legal validity under our system. In other words, the now universally accepted doctrine of judicial review was not enumerated in the 1878 Constitution itself, but in a Supreme Court decision that resulted from John Adams’ lame-duck “Midnight Appointments.”
For more of Clay Jenkinson’s views on American history and the humanities, listen to his weekly nationally syndicated public radio program and podcast, “The Thomas Jefferson Hour.” Clay’s most recent book, “Repairing Jefferson’s America: A Guide to Civility and Enlightened Citizenship,” is available at Amazon.com.