Congress Has Refused To Confirm Supreme Court Justices Before, And Can Do It Again

Congress in 1866 was concerned about an unpopular, reactionary president using the Supreme Court to restrict the people’s rights. In 2017, we will likely find ourselves in a similar spot.

In a recent article here at The Federalist, Ilya Shapiro explained that the Senate would be well within its rights to refuse to confirm any of Hillary Clinton’s Supreme Court nominees should she become president. The reaction on the Left was swift and hysterical. In the Huffington Post, legal affairs reporter Cristian Farias called the idea “the beginning of the end of the Supreme Court as we know it” and “unprecedented in American history.”

On the first point, reasonable people may disagree, but on the second Farias and other outraged lefties are completely wrong. Refusing to allow a president to appoint Supreme Court justices is not unprecedented, because Congress did that very thing in 1866. It was an unusual solution to an unusual situation, but it was also popular, constitutional, and arguably necessary for the survival of the republic.

Congress Versus the President

In 1866, a Republican Congress was contemplating the reconstruction of the defeated South after the Civil War. They had overwhelming majorities in both the House and Senate, but were obstructed by the president, Andrew Johnson. Elected vice president in 1864, Johnson, a former Democrat, acceded to the presidency after the assassination of Abraham Lincoln in April 1865.

Republicans were initially optimistic that Johnson would work with them to ensure their vision of a new, more equal order in the South, but he quickly dashed their hopes. Johnson pardoned almost all of the former rebels and sought to readmit the seceded states with no changes to their legal and political makeup other than abolishing slavery, which was mandated by the Thirteenth Amendment.

To Republicans in Congress, Johnson’s leniency looked to overturn the results of the war. Southern states were already enacting restrictions on former slaves’ voting and civil rights, and Republicans feared that the rapidly reassembled Union would place the erstwhile secessionists in an even stronger position than they had held before the war, while trampling on black Southerners’ new-won freedoms. They responded by passing their own reconstruction plan and, when Johnson vetoed their proposed laws, by voting to override him.

Controlling the Judiciary

There would be limits to what Congress could legislate, however, especially if Johnson were able to pack the Supreme Court with nominees who would find any Reconstruction law unconstitutional. Faced with the destruction of the gains won in the Civil War, Republicans acted.

U.S. Supreme Court in 1866

In 1866, they proposed the Judicial Circuits Act, which passed the House 78-41 and was approved in the Senate on a voice vote. The act required that “no vacancy in the office of the office of associate justice of the supreme court shall be filled by appointment until the number of associate justices shall be reduced to six.” The Supreme Court, which then had ten seats (one of which was vacant) would be reduced with the death or retirement of each justice until it was down to six seats. Effectively, Congress ensured that Johnson would never have the opportunity to appoint a justice.

Read the rest of this op-ed from The Federalist HERE.

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