Senate Minority Leader Chuck Schumer, a New York Democrat, seems to have been in a strange frame of mind since President Trump nominated Justice Amy Coney Barrett to the Supreme Court in late September. He should be happy that he wasn’t around in 1801, when John Adams, having already lost reelection after one term in office, named his ally John Marshall as chief justice. Not only that, but he did it so that a lame-duck Senate would confirm him. Adams then left town without notice under cover of darkness in what can be only described as a huff, so as to avoid his rival’s inauguration.
By Schumer’s standard, Adams acted illegally — and with great consequence. For the 34 years that he lived while in office, Marshall upheld in the era of Jefferson the ideas and ideals of John Jay, Alexander Hamilton, Gouverneur Morris, and even George Washington about the power and sway of the national government, its primacy over all the state governments, and the executive ‘energy’ so admired by Alexander Hamilton. Those ideas remained intact for use in the Civil War era, when they were so badly needed and the margin for error was small.
“Hamilton’s plea for the Bank [of the United States] had a continuing life in American history,” as Ron Chernow tells us,
Presidents facing such emergencies, and handling them under Marshall’s distant guidance, would come to include Abraham Lincoln in the Civil War and Franklin D. Roosevelt in the Great Depression.
We have had many reasons over the years to be grateful for what Schumer would probably call Adams’s “illegitimate” seizure of power, which was considerably less “legitimate” than what Trump and McConnell are doing right now. In 1801, Adams was the lamest of ducks, having been defeated already before he made the nomination. Adams actually defied an election result; in Trump’s case, the election hasn’t happened.
Schumer called Trump’s nomination “illegal,” which it is not. The Constitution does not disallow it, nor does any law. If the founders thought it improper to fill a Supreme Court seat in a fairly short time before an election, they would have said so in writing, as they did when outlawing or forbidding so many other things.
But the founders never imagined that the judicial branch would ever become so intensely political. They did all that they could to attempt to prevent it, setting up bars and protections in the institutions that the Left couldn’t wait to tear down. These barriers have been destroyed again and again by Democrats who have been, for the most part, rather more lax in controlling their own passions than in attempting to control those of their backers and friends.
To date, no surprise witness on the conservative side has ever “come forth” with surprise information about a nominee that pushes all the right buttons.
