The Burgering of Buchanan and JQ Adams; the apolitical Golden Age never was

 One last leftover from my attempt to provide a full history of "Borking" and "Burgering" during the Garland nomination:

"Justice Robert Trimble died in August 1828 as the election campaign between President John Quincy Adams and Andrew Jackson was concluding. Adams allegedly asked Henry Clay to consider replacing Trimble, and Adams then nominated John Crittenden in December 1828, after Jackson won the general election. The Senate postponed any vote on Crittenden until Jackson became President. After Jackson became president the following March, he named John McLean to the position.

Justice Peter Vivian Daniel died in late May 1860 during the race that saw Abraham Lincoln win the White House. President James Buchanan failed to get Jeremiah Black confirmed as Daniel’s replacement in February 1861. Lincoln finally had Samuel Miller confirmed in July 1862 to replace Daniel.

--

From "Why the current Supreme Court nomination situation isn’t that unique"

Constitution Daily, February 14, 2016, by Scott Bomboy

 In February 1861, President James Buchanan had nominated Jeremiah Black to the Supreme Court, but congressional Republicans awaiting Lincoln's arrival and inaugural in barely a month sought to save the seat for a Lincoln appointment.

The Supreme Court and Military Justice by Jonathan Lurie - 2013

Yet, there is one glaring error in almost all commentaries on disputes over judicial selection over the past few decades—the absence of any substantiation of an earlier, so-called “golden era” in which there actually was general deference within the Senate to Presidents’ nominations to federal district and appellate judgeships.  ... Nor was the antebellum Senate uniformly or reflexively deferential, occasioning the forced withdrawals of some nominees, rejections based on concerns about the nominees’ integrity, or their positions on the hot-button issues of the day—most importantly, slavery. There was deference, but it was not automatic. Further, there was no systematic or sustained consensus on “merit.” Judicial nominations were often made to reward political allies, and opposition fomented to punish political foes. Political and ideological concerns were almost always a backdrop, if not expressly important factors, in the dynamics of the judicial nomination and confirmation process during the pre-Civil War period. Strikingly, despite the existence of a greater absolute number of judicial seats (and allegedly more bitter politics), the ultimate percentage of confirmed nominees between the antebellum period and the modern one is comparable. Moreover, the confirmation process in each of these eras largely functioned as it was designed by the Framers and paid special attention to nominees who lacked integrity or were obviously unqualified or unsuited for the bench.

... Critics of the current system often point to the increased politicization of the process as the cause of departure from some prior “golden era.” The ideal approach to federal judicial selection would presumably focus primarily, if not exclusively, on personal qualifications, integrity, and strength of character in place of the apparent current preoccupation with political party affiliation. In fact, the process has never had that kind of focus, and a closer look at the early years of judicial selection reveals an era of controversial nominations that was by no means halcyon. ... Every antebellum President took political considerations into account in making nominations; ... political parties, particularly in times of divided government, often split along party lines in judicial confirmation proceedings, and several judicial nominations in the antebellum period failed because of opposition based on the particular nominees’ ideologies or past political decisions. 

... It might appear that there is a better chance today that one party’s members will unify against a candidate based on their dislike for a President and their hope to preserve the vacancy for the next President, whom they hope will be from their own party. Of course, this circumstance is not new to American politics. It is no different than how Democrats had obstructed some of Tyler’s judicial nominations, particularly his last efforts to fill a Supreme Court vacancy, because of their dislike for Tyler and hope to preserve the vacancy for the next President, whom they expected to be from their party. Similarly, Democrats blocked Fillmore’s efforts to fill a Supreme Court vacancy because they did not want Fillmore to make it. When Republicans obstructed or successfully blocked confirmation proceedings in anticipation of the 2012 presidential election because they disliked President Obama or simply did not want him to fill vacancies, their actions were not unprecedented. They were doing what partisan Senators had done since the early 1800s.

... It is plainly evident that nominees’ outlooks or ideologies played a central role in the selection and confirmation process, just as they do today. ,,, There is ample evidence indicating both Presidents and Senators took political connections, ties to themselves and/or their parties, and even ideological considerations into account in assessing judicial nominees. Moreover, there is no evidence to suggest that any consensus or even express preoccupation with merit existed. Merit was, and still is, a contested concept within this process. ... When all is said and done, politics or political considerations have played a significant role in a process that the Constitution explicitly placed under the control of the nation’s political leaders. 

 -- From "The Politics of Early Justice: Federal Judicial Selection, 1789–1861", by  Michael J. Gerhardt & Michael Ashley Stein

 

"Two main factors controlled [Lincoln's]appointments to the Court: Lincoln's demand that the selectees have sound political views on the great issues of the Civil War, and the political forces that guided his selections. Lincoln did not require political training and judicial experience as primary requirements."

In 1861, Lincoln was very busy and the Supreme Court was adjourned from March until December, so he did not find it very urgent. But by December there were three vacancies and two Justices were too sick to participate, so he realized he needed to appoint at least one. Each of the three appointments were hard decisions about which political supporter, and group of supporters, to reward; and it was also made harder because Associate Justices were supposed to be replaced with men from the same federal judicial circuit, and Congress was in the middle of revising these because of westward expansion. Miller was his second appointment. The third was ... 

Lincoln's Supreme Court

By David Mayer Silver, U. Ill. Press, 1956

"Lincoln advised Davis on August 27, 1862, that he intended to appoint Davis to the Court. Lincoln waited seven weeks, until October 17, to officially appoint Davis to the seat, which had been vacated by Justice Campbell, of Alabama, when he resigned on April 30, 1861, to join the Confederacy. Thus, Lincoln left the seat vacant for more than seventeen-and-a-half months before filling it."

 

Some Legal Myths About Lincoln

By ROBERT FABRIKANT

SJnl A. Lincoln Assoc., Volume 29, Issue 1, Winter 2008, pp. 38-50