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"Robin Hood," Congress and the Court

WILLIAM F. SWINDLER

Copyright 1976, Supreme Court Historical Society
from the Yearbook 1977 Supreme Court Historical Society

Presidents nominate persons for positions on the Supreme Court for a variety of reasons--and in about one case in four, the Senate rejects the nomination for a variety of reasons, mostly political. Altogether, thirty-four persons have been proposed for the Court who did not sit. Seven were confirmed but declined the appointment; one died after confirmation but before he could take his seat; twelve were rejected by recorded vote; the rest were killed off by various types of delaying action, or simply no action.

Eight Presidents have had one of their nominations defeated by one senatorial tactic or another; Grover Cleveland and Richard Nixon had two rejections apiece; Millard Fillmore and Ulysses S. Grant, three each. But the record is held, in rather dubious honor, by John Tyler, the unhappy President without a party, who had the distinction of experiencing five rejections of four of his nominees in thirteen months.

Tyler's selections for the Court were all of high professional quality. It was Tyler, not the individual nominees, who was the target of the Senate vendetta. Only once in six attempts did the President succeed in getting his man confirmed--Chief Justice Samuel Nelson of New York. Nelson was so conspicuously competent that, in the interval of an uneasy truce between White House and Capitol, his name was approved and he went onto the bench.

Tyler, a Democrat, had come to the presidency by accident. William Henry Harrison had been chosen by the Whigs as their candidate for the White House in 1840 and Tyler had been his running mate. The fact that the vice-presidential candidate came from the opposite party and had almost completely opposite political views seemed to the strategists of the day to be a masterstroke. In the Number Two position, Tyler's views would be neutralized while the combination of a Whig and a Democrat would offer a bipartisan appearance calculated to split the opposition. To the familiar campaign song of "Tippecanoe and Tyler Too," the Whigs contented themselves with vilifying their opponent, Martin Van Buren of New York, and evading a discussion of issues which would bring their own candidates into conflict with each other.

The whole thing blew up when the elderly Harrison was struck by pneumonia on the day of his inauguration and died a month later. Tyler became the first vice president thus to succeed to the White House because of the death of the incumbent President. He immediately served notice that his administration would follow a strong states' rights line; with the Whigs in control of the Senate, this overshadowed a solid opposition to Tyler nominees, e.g., for the Supreme Court, as events were to prove. The Whigs, chagrined at having lost the fruits of the election, turned for leadership to Henry Clay of Kentucky, an old Tyler foe; as for the Democrats, they not only resented Tyler's trafficking with the Whigs in the 1840 campaign, but they were for the most part followers of Van Buren, whose defeat in 1840 was ascribed in large part to the vitriolic attacks of the Harrison-Tyler partisans.

The confrontation began in January 1844, when the President sent up a nomination of a successor to Justice Smith Thompson, who had died the previous month. Tyler's first impulse was to play the same political game that had proved effective--at least up to a point--in 1840: he would propose Van Buren himself, thus appealing to the Democrats for restored party harmony while putting his strongest rival for the 1844 Presidential nomination out of contention. Van Buren's friends saw through the maneuver and persuaded Tyler that Van Buren would reject the nomination and make Tyler himself a laughing stock. The President thereupon substituted another New Yorker, John C. Spencer--and leapt from the frying pan into the fire.

Spencer was a Whig, but this did nothing to further his nomination. First, was the fact that he was an anti-Clay Whig; second, he had accepted appointment to Tyler's Cabinet as Secretary of War and subsequently Secretary of the Treasury. Finally, his narrow, technical views on the national banking laws had added to the current enmities, since it had been a bitter debate over a banking bill that had caused mass resignations from the Cabinet in 1842. Despite acknowledged legal competence, "I have no confidence in the political integrity of Mr. Spencer," wrote a New York political leader to Clay's henchman, Senator John J. Crittenden of Kentucky, while another New York Whig stalwart, Francis Granger, declared in the New York Herald that ninety Whigs out of every hundred would oppose the nomination.

Within three weeks, the Spencer nomination had been rejected by the Senate, 21-26. For the next six weeks, Tyler sounded out a number of prospects including--or so it was rumored--the leading Philadelphia lawyer Horace Binney and the longtime reporter to the Supreme Court, Henry Wheaton. Finally, on March 13, 1844, the President made his second formal selection, the chancellor of New York, Reuben H. Walworth. The Senate showed no disposition to act on the nomination, and while matters thus drifted along a second Court vacancy occurred with the death of Justice Henry Baldwin. On June 5 Tyler sent up a second name for the second opening--Judge Edward King of Philadelphia.

Tyler was in an impossible situation, not only with respect to his Supreme Court nominees but with reference to his entire administrative program. A courtly Virginian of the old Jeffersonian tradition, it had been his misfortune to come to national office at a time when the party of Jefferson was torn between the Van Buren faction of the North and the Clay faction of the West. Indeed, most of the political career of this gentle and gentlemanly Southerner was to be a history of being left behind by changing times. Elected to the Senate as an anti-Jackson Democrat, he had felt obliged to support Jackson against Clay, in the deadlock of 1828, as "a choice of evils." Yet in 1832 when the Jacksonian Democrats won control of the Virginia legislature and returned Tyler to the Senate, it was with instructions to vote to expunge the resolution which had censured Jackson in the heated struggle over the Bank of the United States. Unable to find it in his conscience to do so, Tyler had resigned his seat.

Tragedy and near-tragedy had marked Tyler's presidential years. In 1842 his first wife had died. Two years later, making an official visit aboard the warship Princeton, he himself narrowly escaped death when there was an accidental explosion which killed several members of the presidential party, including a prominent New Yorker, David Gardiner. This event did prove to have a happy ending; Gardiner's daughter, Julia, married the widowed President in June 1844, providing the White House with a gracious First Lady in the closing months of the administration.

The couple then retired to the Tyler plantation on the James River in Virginia. which Tyler had named "Sherwood Forest," in wry acknowledgement of his own political destiny, which he described as the role of "Robin Hood" confronting the arrogance of power in his own time. The choice of the terms apparently was an admission of political predestination; by the spring of 1844, it was apparent that Tyler's chances of renomination for the presidency were as non-existent as his likelihood of getting his Supreme Court nominations through the Senate. In January 1845 the Senate formally tabled the Walworth and King nominations.

That November, the election of James K. Polk had settled several matters--the diehard efforts of Clay to get into the White House, and the prospects of both Tyler and Van Buren for future political office. Another matter which the Polk election settled was the ambition of Senator Crittenden to get onto the Supreme Court. He had first been nominated in the last days of John Quincy Adams' administration, with the Jacksonians in the Senate voting to "postpone" action until their own man took office a few weeks later. Clay, had he been successful in his final bid for the White House, presumably would have sent up the name of his fellow Kentuckian one more time.

Now, in the last days of the Tyler administration, the White House sought to accommodate the Senate in the wake of the presidential election; with political issues settled for the time, and with one Supreme Court position having been unfilled for a year, it could be hoped that a policy of reasonableness might govern relations between President and Senate in these last few months. The optimists were to prove to be only half right.

"Better the bench shall be vacant for a year," the National Intelligencer had editorialized the previous spring, "than filled for half a century by . . . partisans committed in advance to particular beliefs." The charge was somewhat exaggerated; while Walworth was condemned in the Senate as "querulous, disagreeable [and] unpopular," he was in many professional respects the best qualified of Tyler's unsuccessful nominations. For the previous twenty years as chancellor of New York he had virtually written the law of equity pleading and rules of evidence, and a substantial majority of his opinions had been upheld on appeal. Both his predecessor, the renowned Chancellor James Kent, and Supreme Court Justice Joseph Story cited his cases as authoritative.

Yet there was no denying that he was cantankerous, to a point where members of the state bar openly declared that they supported his nomination for the Supreme Court as a means of getting him out of their own judiciary. The animus was apparently deep rooted; in the new constitution of 1846, New York would dispose of the problem by abolishing the office of chancellor. In January 1845, Tyler accepted the fact of the massive opposition to Walworth and withdrew his name.

There was no clear objection--other than the Senate's anti-Tyler fixation--for opposing Judge King, a highly reputed Pennsylvanian, and the President made one final attempt to override the opposition by resubmitting King's name. The signs in the Senate were so forbidding, however, that early in February he withdrew that nomination as well.

Time was now running out; obviously, the anti-Tyler forces were delaying action until a new administration could take over in March. But the outgoing President made one further effort, and for the two vacancies on the Court he finally, on the same day that he withdrew King's name, submitted two last nominations--Chief Justice Samuel Nelson of New York and former United States Attorney John Meredith Read of Philadelphia.

Nelson, one of the best known state judges in the land, was confirmed within a week, and took his seat on the Court the day after Tyler left office. It was to be Tyler's only successful nomination for the bench. Read, although popular with all faction among the Whigs, had antislavery views which were anathema to the Southern members of the Senate, and the term ended without action on his case.

The sound and fury over the Court vacancies actually attracted small attention in their day. The struggle between Tyler and the Congressional opposition involved other issues of more burning public concern, epitomized in the effort to annex the Republic of Texas. After the Whig-dominated Senate refused to ratify a treaty of annexation, Tyler proposed a joint resolution of both houses, which would require only a simple majority. This tactic finally worked, but only after the fall elections made certain a new Democratic majority in Congress. In a sense, the judicial nominations of the President without a party were innocent bystanders to the larger contest; in any case, several highly qualified candidates were the victims.

Yearbook 1977 Supreme Court Historical Society