Kamala Harris must have been so proud of herself. During the vice-presidential debate on Wednesday, she argued that President Donald Trump should not have nominated Amy Coney Barrett to replace the late Supreme Court Justice Ruth Bader Ginsburg, and she cited as her precedent none other than Abraham Lincoln himself — “Honest Abe.”
As it turns out, however, Kamala Harris was being less than honest in her portrayal of Abraham Lincoln’s record.
“In 1864… 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,” Harris began.
“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.'”
— RNC Research (@RNCResearch) October 8, 2020
Yet Lincoln said no such thing. In fact, 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.
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.
As National Review‘s Dan McLaughlin explained, Lincoln delayed because the Senate was not in session when Taney died. In fact, the Senate session ended on July 4, 1864, and did not convene again until December 5, 1864. “It was once common for the Senate to be out of session for much of the summer and fall,” McLaughlin wrote. The Senate session calendar confirms this.
As McLaughlin noted, Lincoln nominated Chase on the very day that the Senate reconvened, and the Senate confirmed him that day.
In fact, historian David Donald claimed that Lincoln dangled a potential Supreme Court nomination before Chase in the hopes that Chase — a former senator, governor, secretary of the Treasury, and presidential candidate — would support Lincoln’s reelection. He did so, and the president won reelection—a reelection that was vital to winning the Civil War.
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, and that may have worked to his benefit in corralling Chase to support his reelection.
Make no mistake: Kamala 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.
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Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.