« Cabinet Work | Main | Pirke Avot: verse twelve »

Trivia Question, complete with (probably correct) answer

So there’s been a bit of a blogsnit about Justice Alito skipping lunch with Our Incoming President. It’s true that snubbing the President-Elect because he voted against your confirmation whilst in the Senate seems petty and small. And if it’s true that there’s a Supreme Court Justice who will not walk one the same side of the street as the Senate Office Building, it calls into question his ability to interpret the Constitution.

But it is an awkward thing, when you think about it. And I did think about it, and I wondered—when was the last time a President came into office while there was a sitting Supreme Court Justice against whose confirmation he had voted? Clearly, it must have been a while. It’s hard to compare Justice Alito’s behavior against the last person in his position, when that last person is… well, neither Our Nearly-Erstwhile President nor his father served in the Senate, nor did the sandwiched Man from Hope. Nor Reagan, nor Jimmy Carter, nor Gerald Ford. Richard Nixon did, but somehow I hadn’t realized that he served only two years; he did not vote on any of Harry Truman’s appointments. Which means that we would have to go back to Lyndon Johnson, who voted for Potter Stewart and John Harlan, as did John Kennedy; the others during that time were all voice votes. Truman’s entire Senate career was under FDR, so I assume he wouldn’t have voted against those nominees.

In fact, unless I miss my guess, the previous Supreme Court Justice (before Chief Justice Roberts and Justice Alito) to greet as new President a man who voted in a roll call against his confirmation in the Senate would be Louis Brandeis and Warren Harding. Then-Sen. Harding definitely voted against confirming Mr. Brandeis in 1916. I don’t see any other possibilities in the last ninety-two years.

The President before Warren Harding to have sat in the Senate was Benjamin Harrison, who presumably would have voted against Grover Cleveland’s nominees in 1888, but he was out of the Senate as of March 1887. As an extra bonus there, Benjamin Harrison would have sat in the Senate alongside Lucius Lamar (1877 to 1885).

Andrew Johnson would be before that, and the nomination of Nathan Clifford in January 1858. I wouldn’t be at all surprised if the 19th-Century Justices refused to meet with the Presidents from the other Party, particularly if the Justice was pro-slavery, the vote before the Civil War, and the post-Civil War President was, you know, Andrew Johnson. Actually, I’m not absolutely certain that Andrew Johnson voted against Nathan Clifford’s confirmation. He was representing Tennessee in the U.S. Senate in January 1858 as a Democrat, but he was a War Democrat; Then-Pres. Buchanan was a Democrat, but a doughface. The vote was 26-23. But I haven’t been able to find out who voted which way, and there were 66 seats, so a fair number of people didn’t vote at all. And there were 20 Republicans, who may have all voted against the pro-Slavery Democrat, or perhaps some of them didn’t vote, but at least one Anti-Slavery Democrat must have voted against his party, but was it Andrew Johnson? Gentle Readers with access to the Congressional Record from 1858 should let me know.

It doesn’t look as if James Buchanan voted against any Supreme Court candidates that were confirmed, although I don’t really know anything about his relationship with the rest of his Party in the Andrew Jackson/Martin Van Buren years. Similarly, Franklin Pierce would presumably have voted with his Party, so it looks like His Accidency John Tyler would have been the previous nay-voter to meet a Justice as President, presumably Roger Taney in 1836—wait, no, John Tyler had resigned his Senate seat on February 29, and the vote on Roger Taney was on March 15. And the earlier ones were voice votes or losers.

So. Trivia question: How many times has a Supreme Court Justice served with a President who voted against his confirmation whilst in the Senate? Answer: Once definitely, maybe twice. And twice more on Tuesday. Unless, of course, I've screwed up my research.

Tolerabimus quod tolerare debemus,