SCOTUS situation we have now has occurred only ONCE before and really not even then
1880, Justice William Burnham Woods nominated by Rutherford B Hayes, made president by the only other election decided by a vote of SCOTUS/Election Board.
This is long but needs to be read to understand why, right now, we are going to make history here.
Hayes was republican, following Grant.
On November 11, three days after election day, Tilden appeared to have won 184 electoral votes: one short of a majority.Hayes appeared to have 166 votes, with the 19 votes of Florida, Louisiana, and South Carolina still in doubt.Republicans and Democrats each claimed victory in the three latter states, but the results in those states were rendered uncertain because of fraud by both parties. To further complicate matters, one of the three electors from Oregon (a state Hayes had won) was disqualified, reducing Hayes’s total to 165, and raising the disputed votes to 20. If either candidate could be awarded the 20 disputed votes, he would be elected president.Now that’s the political situation Hayes had, when in 1880-1881 he faced replacing not one but TWO SCOTUS justices.
There was considerable debate about which person or house of Congress was authorized to decide between the competing slates of electors, with the Republican Senate and the Democratic House each claiming priority. By January 1877, with the question still unresolved, Congress and President Grant agreed to submit the matter to a bipartisan Electoral Commission, which would be authorized to determine the fate of the disputed electoral votes. The Commission was to be made up of five representatives, five senators, and five Supreme Court justices. To ensure partisan balance, there would be seven Democrats and seven Republicans, with Justice David Davis, an independent respected by both parties, as the fifteenth member. The balance was upset when Democrats in the Illinois legislature elected Davis to the Senate, hoping to sway his vote. Davis disappointed Democrats by refusing to serve on the Commission because of his election to the Senate. As all of the remaining Justices were Republicans, Justice Joseph P. Bradley, believed to be the most independent-minded of them, was selected to take Davis’s place on the Commission. The Commission met in February and the eight Republicans voted to award all 20 electoral votes to Hayes. Democrats were outraged by the result and attempted a filibuster to prevent Congress from accepting the Commission’s findings.
As the March 4 inauguration day neared, Republican and Democratic Congressional leaders met at Wormley’s Hotel in Washington to negotiate a compromise. Republicans promised concessions in exchange for Democratic acquiescence in the Committee’s decision. The primary concession Hayes promised would be the withdrawal of federal troops from the South and an acceptance of the election of Democratic governments in the remaining “unredeemed” states of the South.The Democrats agreed, and on March 2, the filibuster was ended. Hayes was elected, but Reconstruction was finished.On April 3, Hayes ordered the Secretary of War George W. McCrary to withdrawal federal troops stationed at the South Carolina State House to their barracks. Finally on April 20, Hayes ordered the Secretary of War to send the federal troops stationed at the St. Louis Hotel in New Orleans to Jackson Barracks.
Okay, the only man ever confirmed by a party opposite from the president in the election year of the last year of a president’s term. Remember, Hayes was Republican, Senate, Democrat.
Woods, a loyal Democrat, was elected mayor of Newark in 1856, and to the Ohio General Assembly in 1858, being named Speaker of the House shortly thereafter.This is the closest situation we have for today. And it’s not even REMOTELY close politically. Not only that, the balance of SCOTUS was not in question. Not even close yet.
Although Woods opposed the Civil War, because he opposed slavery, he came to accept a Union victory as a necessity. Thus in 1862 he left the Ohio state house to join the Union Army.
He was appointed lieutenant colonel of the 76th Ohio Volunteer Infantry, which served in the Western Theater. He fought at the battles of Shiloh and Vicksburg, and was promoted to brigadier general. Woods commanded a brigade under William T. Sherman during the Atlanta Campaign and a division during Sherman’s March to the Sea. During the Carolinas Campaign, he fought with distinction at the Battle of Bentonville. He was appointed a brevet major general in early 1865.
At the end of the war, Woods stayed in the South, settling in Bentonville, Alabama, where he reopened his law practice and began farming cotton.
President Ulysses S. Grant nominated him to serve as a circuit judge for the Fifth Circuit in 1869.
He then served on the Court of Appeals for the Fifth Circuit for 11 years until his nomination to the nation’s highest court in 1880.
The Slaughter-House Cases, which “tested the issue of the reach and breadth of the 14th Amendment”, were the most important cases he adjudicated on in the lower courts. He found that a state act that created a monopoly in the slaughterhouse business violated the Privileges and Immunities Clause of the new 14th Amendment and therefore was void", but three years later a majority of the Supreme Court reversed his decision in the Slaughter-House Cases. At this point (relatively early in his career), Woods was willing to read the provisions of the 14th Amendment broadly.
President Rutherford B. Hayes named Woods to the U.S. Supreme Court on December 21, 1880. He “easily received Senate approval” by a vote of 39 to 8 and took the oath of office on January 5, 1881. Although he was the first person to be named to the Supreme Court from a Confederate state since 1853, but this anomaly was lessened because he was originally a northerner and, by that time, a Republican, so he was palatable to the U.S. Senate’s Republican majority (in 1881 the next Senate had been seated and majority had changed).
Woods was not a major contributor to the Court and spent only six years on the bench. He remained on the Court until his death in 1887.
I have no problem with Obama nominating someone to SCOTUS. But we shoul dbe VERY sanguine about the politics and the history here which is being made right in front of us.
More on justices nominated in the last year of presidencies HERE