- The Washington Times - Tuesday, October 13, 2020

Sen. Kamala Harris is the very embodiment of today’s progressives. She proved this again and again on the debate stage with Vice President Mike Pence, most clearly in her continual willingness to twist or rewrite history to make a point.

This time she simply made up a story about Abraham Lincoln’s decision to appoint Salmon P. Chase to the U.S. Supreme Court as the election of 1864 approached. Chief Justice Roger Taney, author of the notorious Dred Scott decision and an implacable foe of the president, died in early October. In Ms. Harris’ version of what happened next, Lincoln delayed appointing his successor until after the election because “Honest Abe said, it’s not the right thing to do.”

She suggested that “Honest Abe” acted honorably while Donald Trump, the dishonest president she and former Vice President Joe Biden hope to send back to Mar-a-Lago, is acting dishonorably in appointing Judge Amy Coney Barrett to the court before this fall’s election. As National Review’s Dan McLaughlin and others quickly pointed out, Lincoln didn’t send a nomination to the Senate that October because the Senate wasn’t in session and no one has been able to find the senator’s all-too-convenient quote. What’s more, historians agree that Lincoln delayed until after the elections not because he wanted to do the “right thing,” but so he could motivate wannabe justices to campaign for his reelection.

The Senate reconvened in a lame duck session following the November election and Lincoln immediately submitted the nomination of his former Treasury secretary, Salmon P. Chase. The Senate took up the nomination as soon as a quorum showed up and confirmed him that very day. Ms. Harris’ Lincoln story, like the progressive claim that decent presidents don’t try to fill court vacancies as an election approaches, is more fantasy than fact.

Twenty-nine Supreme Court vacancies have come up during election years and in every case the incumbent president nominated someone to fill the vacancy. They must all have shared President Trump’s belief that presidents serve for four years not three-and-a-half. 

It is true, of course, that presidents whose party controlled the Senate at the time of these appointments fared far better than those who tried to name a justice with the Senate in hostile hands. Seventeen of the 19 justices appointed by a president with a friendly Senate were confirmed. Nominees submitted by a president to a hostile Senate didn’t fare as well, but they could hardly be criticized for trying — as Barack Obama did in naming Merrick Garland.

Perhaps the single most consequential Supreme Court nomination in our history was made not just in an election year, but to a lame duck Senate after an election the president had lost. In December 1800, Chief Justice Oliver Ellsworth resigned from the court for health reasons. President John Adams had lost the November election to Thomas Jefferson, a man seen as the embodiment of all that was evil by Federalists like Adams.

Desperate to preserve and extend the Federalist legacy, President Adams nominated Secretary of State John Marshall, a 45-year-old, dedicated Federalist, knowing that if he hesitated, Jefferson would appoint someone hostile to the Federalist cause as soon as he was sworn in.

Marshall was a loyal friend and lawyer, but hadn’t practiced for some years, which led Adams’ opponents to question his competence. None, however, doubted the president’s right to submit his choice until the moment he left office — even as a lame duck.

Marshall went on to become the best known and most influential Supreme Court justice in U.S. history. He served for three decades as chief justice and turned the largely ineffectual court into a branch of government equal to the presidency and Congress. Marbury v. Madison, the decision that made the Supreme Court what it is today, was written by the new chief justice and is studied to this day by every student of the law and constitutional history. It is that court and Marshall’s legacy that Mr. Biden, Ms. Harris and their progressive followers would destroy if they cannot control it.

Ms. Harris and her progressive followers never hesitate to misuse history for their own purposes, but ignoring our past and making up stories to fit the narrative of the day is unseemly or worse. It was clear that the senator concocted the story in advance to use as a diversion when asked if she and her running mate intend to “pack” the Supreme Court if they win in November. The two have dodged that all-important question whenever it’s been asked, but as Mr. Pence observed after watching Ms. Harris duck and weave, we all know that is exactly what they intend to do if they win.

• David A. Keene is an editor at large for The Washington Times.

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