Kamala Harris, Honest Abe and the Supreme Court

By Angelo Fichera

Posted on October 9, 2020

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Q: Was Sen. Kamala Harris’ story at the vice presidential debate about President Abraham Lincoln’s 1864 Supreme Court vacancy correct?

A: There’s no evidence that Lincoln said he delayed the nomination to let voters choose the next president, as Harris said.  

FULL QUESTION
Last night in the VP debate Kamala Harris notes that Abraham Lincoln chose to delay nomination of a SCOTUS until after the election, because it was the right thing to do. Is this accurate?
FULL ANSWER

At the vice presidential debate, Sen. Kamala Harris invoked a bit of Civil War-era history by offering the purported words of “Honest Abe” about filling a Supreme Court vacancy just before a presidential election. The tale was intended to bolster Democrats’ argument that the current Supreme Court vacancy should be filled by the winner of the 2020 election.

Many readers have asked us whether her story about President Abraham Lincoln holds up.

While Harris got the basic facts about the timing of the vacancy, she attributed an unsubstantiated quote to the 16th president and advanced an unproven claim about his motivations.

Here’s what Harris said:

Harris, Oct. 7: In 1864, one of the, I think political heroes, certainly the President, I assume of 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.

It’s true that a Supreme Court vacancy occurred just 27 days before the 1864 election, when Chief Justice Robert B. Taney died on Oct. 12. Taney was known for offering the decision in the 1857 Dred Scott case, which had declared that Black people, slaves or free, were not U.S. citizens.

And it’s true that, while Lincoln’s Republican party controlled the Senate, he didn’t make a nomination until after he was reelected. Lincoln nominated Salmon Chase for chief justice in December 1864. Chase had served as Lincoln’s Treasury secretary and had vied for the Republican presidential nomination against Lincoln in 1860.

But Lincoln’s exact rationale for waiting to nominate Chase until after the election isn’t clear — and there is no record of him making a quote that squares with the one Harris described — according to historians.

“Lincoln never actually explained the delay in his own words, so we don’t know his motivation,” Christian McWhirter, Lincoln Historian at the Abraham Lincoln Presidential Library and Museum, told us in an email.

McWhirter continued: “History is, of course, all about interpretation, so historians have mostly relied on context to draw conclusions. The 1864 election is certainly important context, as is the fact that the Senate was out of session until December 5. Things like that can provide clues for what Lincoln might have been thinking, but ultimately we can never know exactly.”

Congress, as McWhirter noted, was not in session when the vacancy arose — which means the Senate couldn’t have confirmed Lincoln’s selection until after the election, anyway. The Senate ultimately confirmed Chase a day after returning (and the same day Lincoln formally nominated him) on Dec. 6.

Historian Michael Burlingame in his book, “Abraham Lincoln: A Life,” wrote that “upon hearing the news” of Taney’s death “Lincoln said he would not nominate a replacement for Taney right away but would remain ‘shut pan’ for a while. Preoccupied with the election and his annual message, he postponed consideration of the matter until Congress met in December. In the meantime, he said that ‘he was waiting to receive expressions of public opinion from the Country.’” Burlingame, however, describes “such expressions” as letters about who to choose — not the results of the election.

In “Recollections of President Lincoln and His Administration,” Lincoln’s Register of Treasury, Lucius E. Chittenden, wrote that Lincoln had said earlier that year — in June, when Chase stepped down from Treasury secretary — that, if given the opportunity, “I will make him Chief Justice of the United States.” (Taney had been ill for some time.) Chittenden also wrote that Lincoln “had never contemplated any other” person for that vacancy.

The Trump campaign rejected Harris’ claim, too, citing historian and novelist Shelby Foote’s suggestion that Lincoln delayed nominating with a political calculation in mind: to ensure Chase’s “fervent support” leading up to the election.

Likewise, the Washington Post wrote: “The overarching effect of the delay is that it held Lincoln’s broad but shaky coalition of conservative and radical Republicans together. And it kept rivals like Chase in line.”

McWhirter said that whether such a political calculation was a factor in “potentially delaying the nomination is … open to interpretation.”

Also, since Lincoln won reelection, it’s unknown whether he would have nominated someone after the election even if he had not beaten George McClellan.

“I don’t think we have a clear statement from Lincoln one way or the other” on that, McWhirter said.

We fact-checked a number of claims made during the vice presidential debate. For more, see “FactChecking the Vice Presidential Debate.”

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Sources

30th to 39th Congresses (1847–1867).” Office of the Historian, U.S. House. Accessed 9 Oct 2020.

Brockell, Gillian. “Kamala Harris’s ‘little history lesson’ about Lincoln’s Supreme Court vacancy wasn’t exactly true.” Washington Post. 8 Oct 2020.

Buchanan, Larry and Karen Yourish. “Ginsburg Supreme Court Vacancy Is the Second Closest to a U.S. Election Ever.” New York Times. 19 Sep 2020.

Burlingame, Michael. Abraham Lincoln : A Life. Johns Hopkins University Press, 2008.

Chittenden, L.E. Recollections of President Lincoln and His Administration. 1901.

Dates of Sessions of the Congress.” U.S. Senate. Accessed 9 Oct 2020.

Dred Scott v. Sandford: Primary Documents in American History.” Library of Congress. Updated 27 Aug 2020.

Kamala Harris & Mike Pence 2020 Vice Presidential Debate Transcript.” Rev.com. 7 Oct 2020.

McWhirter, Christian. Lincoln Historian, Abraham Lincoln Presidential Library and Museum. Email to FactCheck.org. 9 Oct 2020.

Party Division.” U.S. Senate. Accessed 9 Oct 2020.

Salmon P. Chase.” Library of Congress. Accessed 9 Oct 2020.

Supreme Court Nominations (1789-Present).” U.S. Senate. 9 Oct 2020.

The Taney Court, 1836-1864.” Supreme Court Historical Society. Updated 30 Jun 2017.

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