The Longest Confirmation Battle in History

This post, like all De Civ posts prior to November 2021, was originally published at my WordPress blog. The import to Substack did not go great. I recommend reading the original: https://www.jamesjheaney.com/2016/02/16/the-longest-confirmation-battle-in-history/

Supreme Court Justice Henry Baldwin is chiefly remembered for the drama he caused by dying.

President John Tyler had a very bad relationship with Congress.

Tyler had been elected Vice-President in 1840, and, like many Vice-Presidents, was added to the Whig ticket as an afterthought, his purpose to balance out William Henry Harrison and win votes in the South, not to actually govern. After all, in 1839, no U.S. President had ever failed to serve out his full term. Indeed, Tyler was an ex-Democrat, having left the party (and resigned his Senate seat) less than ten years earlier over President Jackson's expansions of executive power. Though the Whigs were happy to have him, he was not exactly ideologically orthodox -- even in a party as ideologically chaotic as the Whigs.

Upon election, Tyler did not even start working in (or near) the White House; he stayed at his home in Virginia and participated in political decisions exactly twice, both times when the President sent him a letter asking his advice on a particular appointment. He spent a grand total of two hours doing his job as Vice-President ("presiding over the Senate") and was otherwise happy to draw his salary in total obscurity.

But then President Harrison caught pnuemonia and died, just a month after his inauguration. Tyler was forced to return to Washington, where the knives were already out. The Whig party had already begun to dissolve over the issue of slavery (Tyler was a slaveowner), and Whig founder Henry Clay coveted the presidency, as he had for years. He first tried to treat Tyler as a mere "Vice-President acting President," not the actual President of the United States (remember, this is the first time the presidential succession system had actually been tested). Then he exerted immense political pressure on Tyler to resign, hoping to clear the way for a true-blue Whig who could serve as Clay's puppet. But Tyler held fast, and, when he broke with Whig doctrine on tariffs in a major dispute, the Whigs voted to expel him from the party altogether.

Tyler became a man without a party. Over time, he drifted back to the Democrats (and the Democrats, gradually, decided to accept him), but the Whigs held a hefty majority in the Senate, so the Democrats could not move legislation for Tyler. Tyler therefore spent most of his presidency focused on foreign policy, where he could act largely without Congress's support, and was largely successful there, particularly in advancing the annexation of Texas.

However, every once in a while, Tyler had no choice but to deal with Congress. One place where this was inescapable was in nominations to the judiciary, which, according to the Constitution, cannot take effect unless confirmed by the Senate.

Supreme Court Justice Smith Thompson died on December 18, 1843, less than a year before the November 1844 election. Just a few weeks later, on January 9, 1844, President Tyler nominated John Canfield Spencer, former Chief Justice of the New York State Supreme Court and current Secretary of War, to replace Justice Thompson. Although a Northerner going before a North-dominated Senate, Spencer was disliked, particularly by Clay loyalists who considered him a "turncoat" for standing by President Tyler. Calling him "personally obnoxious," the Senate rejected Spencer on January 31st on a 21-26 vote.

President Tyler then nominated Rueben Walworth, in March 1844. The Senate didn't bother rejecting Walworth; they instead slow-walked his nomination, repeatedly postponing consideration in the hopes of running out the clock until the election, when (the Whigs were sure) Henry Clay would be elected President and could name his own justices. This was partly revenge against the Democrats, who had done the exact same thing to Whig Senator Crittenden's Supreme Court nomination fifteen years earlier, postponing it until the new President, Andrew Jackson, could be inaugurated and nominate Democrat justices. Tired of repeated postponements, Walworth withdrew his name in June 1844.

But, by then, events had already intervened! Justice Henry Baldwin died on April 21, 1844. There were now two vacancies on the Supreme Court. President Tyler nominated a replacement -- Edward King -- on June 5th, 1844. The Senate refused to confirm King and, like Walworth, slow-walked the nomination process for many months.

For the rest of 1844, President Tyler tried to fill either of the open seats on the Court, but he couldn't: the Whigs held 56% of the seats in the Senate (counting Sen. John Francis, who was technically a third-party senator), and were in no mood to accept anyone but a Henry Clay Whig on the Court. On December 4th, the last day of the presidential election (remember, until 1848, states voted on different days, so the election lasted up to a month), Tyler took the rare step of renominating Reuben Walworth for the same vacancy. With the defeat of Henry Clay at the polls, the victory of Democratic President-Elect James K. Polk, and the transfer of Senate control to the Democrats, Tyler must have felt he had gained some leverage over the Senate.

The Senate disagreed. Walworth joined Edward King in confirmation hell.

Both vacancies were slow-walked all the way until February 1845, when King and Walworth both withdrew, within a few days of each other. Tyler, with just a few weeks left in his presidency (Inauguration Day was then in March) tried new nominees: Samuel Nelson (also a former New York State Chief Justice) for Justice Thompson's seat, and John Meredith Read (Chief of the Pennsylvania Supreme Court) for Justice Baldwin's.

The Senate confirmed Nelson! Nelson had a reputation for staying way out of partisan politics in the courts, and was widely respected as a jurist in both parties. The Senate thus gave Tyler his only SCOTUS justice... 14 months after the seat originally went vacant.

Read was not so lucky; his opposition to the expansion of slavery was on the record, and the Senate refused to act on him. His name was withdrawn when Tyler's presidency ended and the seat left vacant through most of President Polk's first year.

In September 1845, the celebrated Justice Joseph Story died. President Polk now had two vacancies on the Court, but, lucky for him, Congress was in recess at the time. He appointed Justice Levi Woodbury on a recess appointment to fill the seat, then submitted the nomination in December.

At about the same time, President Polk named a new nominee to fill Justice Baldwin's seat: George Woodward. The seat had now been vacant for over 20 months. The Senate considered Woodward's nomination for another month. The Whigs concluded (perhaps unfairly) that Woodward was a radical free-trade ideologue who, if elevated to the bench, would hold that protectionist tariffs were unconstitutional. Protectionism being one of the major populist issues of the day, then as now, the Whigs opposed Woodward as a bloc, fearing what we would today call "judicial activism" by the free-traders. (This might be called one of the earliest Supreme Court "litmus tests.") Six Democrats also broke ranks with their party to oppose Woodward, some over Woodward's tariff equivocations, some for more personal reasons. Woodward's nomination was formally rejected on January 22nd, 1846. Baldwin's seat had now been vacant for nearly 22 months.

The Senate confirmed Justice Woodbury's recess appointment on January 31st, without serious opposition, but Baldwin's seat remained open. James Buchanan, the Secretary of State (and future President) had harbored a lifelong ambition to sit on the Court, and was widely (though perhaps falsely) rumored to have helped sink Woodward's nomination in order to open the seat up for himself. President Polk did not wish to repeat the debacle, so he waited and investigated and stalled. Eventually, he offered the seat to Buchanan, but delayed submitting the nomination to the Senate until Buchanan panicked and withdrew his name.

Finally, in August, President Polk nominated Robert Grier, a basically obscure Democratic judge who sat on a county district court in Pennsylvania and (in Wikipedia's stirring words) had "a reputation for competence." The Senate confirmed him on a voice vote on August 4th, 1846... well over two years after the seat became vacant. Thus ended the longest Supreme Court vacancy in history, a 28-month gap that spanned two presidencies and some of the most brutal judicial politics in history.

These two extremely long judicial vacancies were unprecedented, and remain record-breakers in more ways than one. But they arose in an era when the Supreme Court was becoming a feared and divisive institution in a fearful and increasingly divided United States, which would split in two just 15 years later with the first shots of the Civil War. When people fear the power of the Court (as the Whigs feared its potential to strike down protective tariffs), it gets very difficult to build the necessary consensus to replace its members, especially in divided government.

I see no reason to believe that the Antonin Scalia vacancy -- which marks, without exaggeration, the greatest potential for the most significant shift in ideological power on the Court in American history -- will follow a course any smoother than the vacancies of the Tyler/Polk presidencies. I very much doubt we will see a nominee confirmed by the elections, and I suspect that, no matter who wins the fall election (and who controls the Senate after those elections), the new president will have a great deal of difficulty pushing through his (or her) preferred nominees. If we elect a divided government this fall, Scalia's seat could easily remain vacant for years, plural.