I just got off the phone with a friend (yes, Q is her real nickname) and I don’t know if I’m more 😩 or 🤯 but I know that I’m 😳 that such a long-standing professor is so surprised that a standing President can, in fact is supposed, to nominate a Justice of the Supreme Court close to an election. She knows better. In face, I’ve heard her discuss that with her own students. It’s nothing new–it goes back to John Adams in 1801.

Adams was a lame-duck president, having lost to Thomas Jefferson in November 1800. In those days the inauguration didn’t take place until March 4, so Jefferson knew that he couldn’t appoint anyone until that day, though the sitting President could, until 12 noon on March 4. No one even though about the Supreme Court until December 1800, when the Chief Justice, Oliver Ellsworth, resigned because of his health. Earlier, John Jay had been a member of the Supreme Court, and Adams now asked him to lead the Court again. Jay had originally left the job because he had not found it interesting. Regardless, Adams believed that he had done an excellent job, and wrote to Jay, offering him the position.

Marshall, who was the Secretary of State at that time, was with Adams when he received the letter from Jay on January 20, 1801, saying that he respectfully declined. It was less than two month before Jefferson would take office and Adams wanted to find someone to fill the position while he was still in office. Marshall suggested that he nominate Associate Justice William Patterson to become the Chief Justice, but Adams turned around and said that he preferred Marshall himself.

Adams was a member of the Federalist Party, while Jefferson was a Democratic-Republican–and the two men cordially loathed each other. Adams was anxious to have a man in whom he had confidence before Jefferson took over. Marshall would fill the bill. Adams nominated him, the Senate confirmed him on the 27th of January and he took office on February 4. Adam always believed that putting Marshall on the Supreme Court was the most important decision he made during his presidency. The man who had never thought about it ended up being the finest Chief Justice we’ve ever had, starting with the Marbury v. Madison decision. Marshall remained Chief Justice for 34 years.

My friend kept saying “OMG how could I have forgotten?” and actually suggested that I put it in the blog to remind people that this has happened before. What bothers both of us–tremendously–is that people are acting as though this is the end of the world–or maybe just the end of the country. It’s not. Everyone needs to CALM DOWN!! It is possible to discuss and debate without going to extremes. We can speak to people with civility, and come to a consensus without threats of mayhem. I’ve said it before, and I sadly need to say it again—where are the grown-ups?