Kamala Harris’ insistence in the vice presidential debate Wednesday night that even “Honest Abe” Lincoln refused to nominate a Supreme Court justice right before an election doesn’t quite track with history, National Review’ Dan McLaughlin points out.
“Abraham Lincoln was up for reelection and it was 27 days and a seat became open on the Supreme Court,” Harris said. “Abraham Lincoln’s party was in charge not only of the White House but the Senate. But Honest Abe said not the right thing to do. The American people deserve to make the decision about who will be the next president of the United States, and then that person can select who will serve for a lifetime on the highest court of our land.
It was part of her non-response to a question about whether or not she and Joe Biden would pack the Supreme Court with additional liberal judges if Judge Amy Coney Barrett is confirmed.
Sen. Kamala Harris refuses to answer if Joe Biden would pack the Supreme Courthttps://t.co/9RfKCOYPDZ pic.twitter.com/zmcWNecaeA
— RNC Research (@RNCResearch) October 8, 2020
McLaughlin noted the Senate was not in session when the vacancy arose, and Lincoln sent the nomination when it returned in December.
“In 1864, Lincoln’s nemesis, Chief Justice Roger Taney (the author of Dred Scott) died on October 13. Republicans controlled the Senate, and Taney had been an obstacle to the war effort, but the Senate was out of session between July 4 and December 5. On December 6, in the lame-duck session (after both he and the Republican Senate had won reelection), Lincoln sent the nomination of Salmon P. Chase, his former Treasury Secretary, as Chief Justice. Chase was confirmed that day.”
PJ Media’s Tyler McNeil wrote that “the polarization of the Supreme Court is a fairly recent phenomenon, dating back to the living Constitution approach of activist judges amending the Constitution by fiat – ‘discovering’ a right to abortion in the Fourteenth Amendment, for example. Before Roe v. Wade (1973), and really before Joe Biden led the smear campaign against Robert Bork in 1987, Supreme Court nominations often proceeded as a matter of course.”
In fact, both of Barack Obama’s appointees, Elena Kagan and Sonia Sotomayor, faced little opposition. President Trump’s previous nominees, Neil Gorsuch and Brett Kavanaugh, were vilified by Democrats and confirmed on largely partisan lines.
“Harris was correct that when Supreme Court Chief Justice Roger B. Taney died on October 12, 1864, President Lincoln did not nominate his successor, Salmon P. Chase, until after the election. This had nothing to do with letting ‘the next president’ choose the nominee, however,” O’Neil wrote.
“Lincoln did not delay the nomination out of some high democratic principle. He certainly did not do so in order to prevent President Donald Trump from nominating a successor to Ruth Bader Ginsburg 156 years hence. He did so because the Senate was out of session.”
O’Neil said Harris “twisted history on Lincoln and the Supreme Court — and she did so in order to dodge a far more pertinent question: whether she and Joe Biden support packing the court, fundamentally changing the rules of the game to support the very ‘living Constitution’ judicial activism that politicized the court in the first place.”
