Wednesday, October 07, 2020

Lincoln wanted the voters to pick Taney's replacement? Not so fast, Senator Harris

Tonight's Vice-Presidential Debate in Salt Lake City included a historical claim by Senator Kamala Harris of California:

"In 1864, one of the, I think political heroes, certainly the President, I assume you also, Mr. Vice President, is Abraham Lincoln. Abraham Lincoln was up for reelection and it was 27 days before the election. And a seat became open on the United States Supreme Court. Abraham Lincoln’s party was in charge, not only of the White House, but the Senate. But Honest Abe said, “It’s 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.” And so Joe and I are very clear: the American people are voting right now and it should be their decision about who will serve on this most important body for a lifetime."

The facts?

On October 12, 1864 Chief Justice Roger B. Taney, author of the majority opinion in the infamous Dred Scott case and constant thorn in the side of Abraham Lincoln's administration of the Union war effort, died.

Abraham Lincoln did not nominate Salmon P. Chase (his Secretary of the Treasury) to the post until December 6, 1864 (he was confirmed the same day!), a month after his victorious reelection over Democrat George B. McClellan.

The circumstances seem to support Senator Harris's claim, superficially anyway. She alluded to Lincoln actually saying this was his rationale to someone in her "history lesson," but she did not attempt to quote honest Abe. It is well that she did not, as there was no such strategy at play here.

Why the delay then?

1a) There WAS an election--which Lincoln believed was essential to winning the Civil War. If he was defeated, the war was likely going to be lost--Union and emancipation would be in jeopardy.

1b) Lincoln was quite worried about what a nomination would do to HIS party--which had many factions, who each had a favorite for the Court.

2) Congress would not reconvene until December--so what was the rush? He would be President until March 1865 regardless of the election's outcome and the Senate would remain Republican, so he could afford to wait until the lame-duck session and keep the conservative and radical factions of his party focused on the election and the prize in Lincoln's hands. Doing so was dictated by political considerations (and, by extension--at least in Lincoln's mind--, strategic military considerations), but not as Senator Harris suggests.

There is no primary source evidence that suggests Lincoln decided to wait with any intention of allowing a President McClellan to appoint the new Chief Justice. None. At all.

But the most absurd thing about this fantasy is the idea that a lifelong partisan like Abraham Lincoln--and a man who had to suffer through four years of sanctimonious lecturing and posturing from Andrew Jackson's appointed Chief Justice (whom Lincoln had previously blamed, in part, for recklessly bringing about the events that led to the Civil War)--would ever allow a racist backsliding doughface Democrat like George B. McClellan to get within half an inch of filling that Supreme Court seat. Never.

To suggest such a thing (Senator Harris), or to allow it to go without negating and mocking it (Vice-President Pence) simply tells us that the people trying to remain/become the 48th/49th Vice-President of the United States know shamefully little about our 16th and, quite possibly, greatest President.

For more on this, please see Michael Burlingame, Abraham Lincoln: A Life, Volume II (Baltimore: The Johns Hopkins University Press, 2008), 731-736.

Wednesday, September 23, 2020

On August 13, 2020 - I compiled a chart (below) to compare the United States to six roughly contiguous European countries with a combined roughly equivalent population to the United States to see if COVID-19 was impacting apples and almost apples about the same regardless of the supposedly far different government responses. I relied on the Johns Hopkins University COVID-19 Tracking Database for this--the Global Map feature.

I have been updating the numbers regularly ever since. I have started to notice something quite peculiar, though, over the last five weeks. While the JHU data for Europe has reflected the recent spikes in cases in Europe reported in the press, the data on deaths has not only remained unrealistically and improbably stagnant, it is actually moving in the retrograde. Below are the updated figures as of 7:00 PM on September 23, 2020.

These six European countries, despite discovering about 900k additional COVID-19 cases, have not only managed to avoid any mortality from them, but have actually managed to resurrect previously dead COVID-19 patients! This might make the novel corona virus not only one of the least fatal illnesses in the history of mankind, but curiously the guarantor of immortality if you happen to die from it in one of six European countries.

Given the rate of infections/deaths in the United States in early August, we would be justified in expecting 208,222 deaths at this point in September. As you can see, the rate of deaths per infection has come down slightly. But it is not way off the expectation from the August data point. By contrast, the 6 Euro countries' rate of infections/deaths would lead one to believe they would be around 253,106 deaths by now with their massive uptick in detected cases. Now, it is one thing to be below that frightening number due to younger people being more likely to test positive, getting better at detecting asymptomatic cases, getting better at treating cases, etc.--but to have the number of deaths actually go down??

Seriously though, the parallels to the suppression of accurate data during the so-called Spanish flu are hard to ignore here. I hope I am wrong.

Thursday, August 17, 2017

What President Trump should have (and easily could have) said on Saturday, August 12, 2017

"We were scheduled to have a meeting today about the status of Veterans in our country, and the new bi-partisan bill supporting their ability to seek the best medical care available in our country, but events have superseded the schedule. Today we stand with the people of Charlottesville, Virginia who simply want to live in peace and make decisions for themselves without being harassed by reprehensible outsiders. The United States, which the most illustrious of my predecessors beautifully wrote in 1790, "gives to bigotry no sanction, to persecution no assistance" and will never be the home or domain of vile collectivist ideologies that we have spilled blood and treasure to eradicate at home and abroad--be they racist, fascist, communist, or religious.

"All who commit criminal acts will be punished to the fullest extent of the laws of the State of Virginia and the United States--I have already called Governor McAuliffe and the Attorney General and have been assured that they are doing everything legally permissible to bring anyone responsible for violating the laws of Virginia or the laws of the United States to justice. I would like to extend my personal thoughts and condolences to all those who have been injured or killed as the result of the disturbances this day.

"Our rights to disagree with one another, to speak freely, passionately, and openly--and assemble and protest and demonstrate--are sacred and inviolable. Just as sacred and inviolable are our rights to life and liberty and to not be physically assaulted by others. There is no tension or contradiction between legitimate rights, and there is no tension here. Saying vile things is unpopular but undeniably one's right to do. Doing vile things that violate the rights of others will never be permissible or tolerated while the Constitution of the United States still lives or while I am still the President of the United States.

"God bless the people of Charlottesville, those who have been hurt and injured, and those who have lost loved ones--and god bless the United States of America."

A republican

Tuesday, February 16, 2016

Some Historical Advice for Senate Republicans

With the death of Supreme Court Associate Justice Antonin Scalia (1936-2016) comes the end of a colorful, controversial, and consequential three decades on the bench. Shockingly, in an election year with a divisive President and recently swept in Republican majority in the U.S. Senate, we find ourselves confronting something "unprecedented" in American history--a lame-duck President making a Supreme Court appointment with a Senate that may very well refuse to even act on the nomination. (Digression: unprecedented things in American history happen all the time, in every realm of society--they are not newsworthy simply for their novelty!) Quickly, the political chattersphere kicked into gear about who would be at fault for this allegedly never before seen example of political hackery and dysfunction.

And yet, the history of the Republic contains at least two far more acrimonious examples of Congressional hatred for an unpopular and divisive President that resulted in delay and "hijinks" for Supreme Court appointments. And I would like to suggest that Senate Republicans follow one of these examples to avoid media bottlenecks over the next year that are likely to play right into the President's hands if he's clever enough (and he certainly is).

As for the really nasty example that Republicans cannot follow even if they wanted to (their majorities aren't big enough), one need only look at the Presidency of Andrew Johnson. Aside from being impeached by the House of Representatives and nearly removed from office by the Senate, Johnson's tenure in office between 1865-1869 is also notable for the fact that the Congress of the United States deliberately went out of its way to reduce the size of the Supreme Court from nine to seven justices so that President Johnson could not appoint anyone. His one nominee, Henry Stanbery, met no action in the Senate because there was no longer a seat in existence for him to take. It should be noted, by the way, that the Senate has done this--take no action at all during a session on a nominee--nine times (there have been 160 nominations, so that is 5.6% of the time).

One more historical delay before getting to the example Senate Republicans may wish to emulate. The last nominees actually made during an election year, Lyndon Johnson's 1968 appointments of Abe Fortas as Chief Justice and Homer Thornberry as Associate Justice were both withdrawn by the President in the face of congressional opposition (Democrats held a 60+ seat Senate majority throughout the session), which does not bode well for election year appointments. This is not due to any real constitutional, or even informal, arrangements, but simply the politics of election years when most of Congress is out of town and jittery about decisions that may have dire consequences in November. Reagan's appointment of Anthony Kennedy, it should be noted, occurred in 1987 and was wrapped up in the first two months of 1988. Reagan, unlike Johnson, was incredibly popular and his Vice-President was about to be swept into office later in the year--different political realities produce different outcomes, who knew!

Finally, the precedent that Senate Republicans should follow. In 1841, after one of the most contested and exciting elections in American history, and barely a month into his Presidency, William Henry Harrison died. His Vice-President, John Tyler (Too), assumed the post with the full backing of the Whig Party that had just elected both men to the top of the Executive Branch. Sadly, for the Whigs, Tyler's Whiggism was of the anti-Andrew Jackson's use of executive power variety and not the Henry Clay "American System" variety. This meant that once the Whigs passed the legislation the voters just sent them to Congress to pass, their Whig President vetoed those laws. Very quickly, Tyler was read out of the Whig Party. An aristocratic Virginian anti-Jacksonian, he found no home with the Democrats either. He was a despised President with no party at all--a rarity in American politics, that only Andrew Johnson resembles in any way.

Now, what does this mean for the Supreme Court? Well, during Tyler's rather miserable time in the Executive Mansion, two Associate Justices died--Smith Thompson (December 1843) and Henry Baldwin (April 1844). Tyler proceeded over the course of 1844--an election year--to submit five different nominees for the two vacancies in nine separate nominations. The Senate was narrowly controlled by the Whigs. First was John Spencer in January 1844, whom the Senate rejected three weeks after his nomination. Next was Reuben Walworth, whom the President withdrew in June after three and half months before the Senate. Then it was Edward King, who found himself postponed. John Spencer and Reuben Walworth were renominated and withdrawn again on the same day in June. In December, after a new President was elected (James K. Polk, Democrat), Tyler renominated King and Walworth, both of whom were withdrawn in February 1845 (Presidents were still sworn in on March 4 in those days) in the face of continued Senate opposition. Then, miraculously, Tyler submitted Samuel Nelson on February 4, 1845 who won unanimous consent from the Senate ten days later. Tyler's final nominee, John Read on February 7, 1845, met no action in the Senate and no vote. Baldwin's seat was not filled until Polk successfully nominated Robert Grier, who was confirmed in August 1846 (more than two years after Baldwin's death!) Why did Nelson make it through? He was an old jurist from New York with a good reputation who avoided the partisan strife of the Second Party System and whose only political service occurred during the good feeling Monroe administration. Which is to say, Nelson was someone everyone respected and could live with--no one held it against him that Tyler had nominated him.

So what lesson do Senate Republicans draw from all this? Obviously, President Obama is not a man without a political party and he has considerably more resources and talent than John Tyler ever did. But, what 1844 proves is that an antagonistic Senate can easily keep Supreme Court seats open simply by considering and rejecting nominees from a President the majority doesn't much care for. There are several useful lessons here for Senate Republicans in 2016:

1) Do not be afraid to reject nominees until you get one you like--the President is more desirous of living on through SCOTUS than you are!
2) Do not be afraid to reject nominees more than once--when he keeps reappointing rejects, he will look as silly as he says you are every time you repeal Obamacare
3) Do not stall on a nominee unless there is only a week or two left in Obama's term and/or the election is already over--the last thing you need is some sympathetic looking character constantly before the nation as they wait for consideration and are ignored (the American people can live with watching someone lose, but not with their being unable to have a shot--also, the media of 1844 hated John Tyler, whereas the media of 2016 is likely to disdain Senate Republicans)

Of course, if Hillary Clinton or Bernie Sanders wins the election in November (and Democrats retake the Senate), those Obama appointees might start to look good compared to what is about to come. In which case, hopefully there is a modern day Samuel Nelson waiting for action in the Senate!

Thursday, May 22, 2014

Getting Lincoln Right

The Objective Standard has published a long, but important, article of mine on Lincoln's essential virtue and importance and the gross and shameful libel he has suffered at the hands of many so-called Libertarians and classical liberals in the last 20-30 years.

Follow this link to read and/or purchase the article or entire issue in which it appears.

-- A republican