Conservatives claim to revere the Founders, so maybe we can learn something from the way the Founders dealt with their own contentious Supreme Court nomination.
The election of 1800 was the first truly ugly and bitterly divisive Presidential elections. It pitted incumbent President John Adams against his Vice-President Thomas Jefferson. As the Constitution was originally written, the candidate with the most votes became President and the second place finisher became Vice-President. In 1796 this made the Federalist Adams President, and his bitter rival, the Anti-Federalist Jefferson Vice-President.
Adams and Jefferson had vastly different views of the role and power of government. Adams believed in an activist government. Today he’d be considered a liberal. Jefferson believed in limited government and states’ rights. Today he’d be a conservative. This anomalous result led to the Twelfth Amendment, which allowed presidential candidates to run with a selected vice-president.
Their four years in office were extremely acrimonious. They clashed frequently, and with increasing bitterness. This bled over into the 1800 Presidential election. It didn’t help that the Federalists in Congress enacted the Sedition Act to punish newspaper publishers critical of the Adams administration, most of whom supported Jefferson.
The campaign was unusually nasty, with both sides accusing the other of all manner of transgressions, including sexual impropriety. Adams allies accused Jefferson of having affairs with his slaves. In turn, Jefferson’s allies questioned Adams’ sexuality.
Voting at the time was much different than today. Each state set its own election day, so the election lasted from April until October. The selection of Senators took even longer, because they were chosen by State legislatures, and the last wasn’t named until February.
Jefferson won handily, with 61% of the vote (which was only 41,330 votes). The kinks of the Twelfth Amendment hadn’t been fully worked out, and Jefferson and his running mate Aaron Burr received the same number of votes. This threw the election into the House. The final result in the House was not reached until February 17, 1801.
In the middle of the Presidential election, on September 30, 1800, Chief Justice Oliver Ellsworth resigned due to poor health. Adams offered the seat to John Jay, who’d previously served as Chief Justice. The Senate quickly confirmed him, but Jay, who was also in poor health, adamantly refused the position. Jay was on an overseas mission and Adams didn’t receive his refusal until January 20, 1801. This was after the popular vote made clear that Adams hadn’t been re-elected, but before the House decided between Jefferson and Burr.
The election of 1800 also switched the House of Representatives from Federalist to Jefferson’s Democratic-Republican, and swept the Democratic-Republicans into state houses across the nation. These new state legislators were now selecting Senators, which could change the balance of power there as well.
Rather than wait barely six weeks until the new Congress and new President were sworn in, Adams nominated John Marshall, his Secretary of State. Marshall was a partisan Federalist, an ally of Washington and Adams, and an enemy of his distant cousin Jefferson.
In the middle of the fight in the House between Jefferson and Burr, with a new Congress one month away, and a new President barely two months away, the Senate considered Marshall’s confirmation. No one suggested that they wait until the new Congress or the new President were sworn in. The senate debated, and Marshall was confirmed unanimously on January 27, 1801.
Senator McConnell can hold up the confirmation of President Obama’s Supreme Court nominee for any reason he wants. He’s Senate Majority Leader and has that power. But he can’t alter historical facts. He can’t claim deference to the Founders because the facts are clear. The Founders expected the Senate to promptly consider a President’s Supreme Court nominee. That’s what the Founders did then, and it’s what the Senate should do now.