Was Kamala Harris’ Debate Anecdote About Abraham Lincoln and the Supreme Court Accurate?

During the October 7 2020 Vice Presidential debate, Sen. Kamala Harris — the Democratic Party candidate for U.S. vice president — addressed the topic of the fate of Supreme Court Justice Ruth Bader Ginsburg’s vacant seat during a debate with sitting vice president Mike Pence with an anecdote about United States President Abraham Lincoln and his purported reluctance to nominate a replacement judge close to an election year during his presidency:

Kamala Harris on ‘Honest Abe’ and the 1864 Election

Just before the exchange above, debate moderator Susan Page posed a question to Vice President Mike Pence, saying in part:

You’ve mentioned earlier, Vice President Pence, that the president was committed to maintaining protections for people with pre-existing conditions, but you do have this court case that you are supporting, your administration supporting that would strike down the Affordable Care Act. The president says, President Trump says that he’s going to protect people with preexisting conditions, but he has not explained how he would do that, and that was one of the toughest nuts to crack when they were passing the Affordable Care Act. So, tell us specifically, how would your administration protect Americans with preexisting conditions to have access to affordable insurance if the Affordable Care Act is struck down?

Pence responded by pivoting to abortion before segueing to the vacant Supreme Court seat and efforts to confirm a replacement for Ginsburg before the election. In his allotted two minutes, Pence posed a question to Harris about whether she and former Vice President Joe Biden planned to “pack the [Supreme Court]” with additional judges should Amy Coney Barrett be confirmed prior to the election:

Well, thank you, Susan, but let me just say, addressing your very first question. I couldn’t be more proud to serve as vice president to a president who stands without apology for the sanctity of human life. I’m pro-life. I don’t apologize for it, and this is another one of those cases where there’s such a dramatic contrast. Joe Biden and Kamala Harris support taxpayer funding of abortion all the way up to the moment of birth. Late term abortion. They want to increase funding to Planned Parenthood of America.

For our part, I would never presume how Judge Amy Coney Barrett would rule on the Supreme Court of the United States, but we’ll continue to stand strong for the right to life. When you speak about the Supreme Court, though, I think the American people really deserve an answer, Senator Harris. Are you and Joe Biden going to pack the court if Judge Amy Coney Barrett is confirmed? I mean, there’ve been 29 vacancies on the Supreme Court during presidential election years from George Washington to Barack Obama.

Presidents have nominated in all 29 cases, but your party is actually openly advocating, adding seats to the Supreme court, which has had nine seats for 150 years if you don’t get your way. This is a classic case of if you can’t win by the rules, you’re going to change the rules. Now you’ve refused to answer the question. Joe Biden has refused to answer the question-

No, you’ve refused to answer the question. Joe Biden has refused to answer the question. So I think the American people would really like to know if Judge Amy Coney Barrett is confirmed at the Supreme Court of the United States. Are you and Joe Biden, if somehow you win this election, going to pack the Supreme Court to get your way?

Harris responded to Pence by stating she was “so glad we went through a little history lesson,” leading to the exchange in which Harris referenced Lincoln’s administration and a purported Supreme Court vacancy in 1864:

Harris :
… Let’s do that a little more. In 1864 …

Pence:
No. I’d like you to answer the question.

Page:
Yes, she’s-

Harris :
Mr. Vice President, I’m speaking, I’m speaking.

Okay. In 1864, one of the, I think political heroes, certainly the President … Abraham Lincoln. Abraham Lincoln was up for re-election, and it was 27 days before the election, and a seat became open on the United States Supreme Court.

Abraham Lincoln’s party was in charge, not only of the White House, but the Senate. But Honest Abe said:

“It’s not the right thing to do. The American people deserve to make the decision about who will be the next president of the United States. And then that person can select who will serve for a lifetime on the highest court of our land.”

And so Joe and I are very clear: the American people are voting right now and it should be their decision about who will serve on this most important body for a lifetime.

As the debate aired, presidential historian Michael Beschloss addressed Harris’ statements in part via Twitter. Beschloss said Harris was correct at least about the timeframe referenced:

The Death of a Justice in 1864 and Lincoln’s Approach to the Vacancy

1864 was indeed an election year, and an incumbent President Abraham Lincoln (National Union Party) ran against George Brinton McClellan (Democratic Party) and Ellsworth Cheeseborough (independent).

Election Day was November 8 1864; Lincoln won with 55 percent of the popular vote. On October 12 1864, Supreme Court Justice Roger Taney died. At the time of Taney’s death, he was a member of the Democratic Party:

Taney died on October 12, 1864, at the age of 87 [on] the same day his home state of Maryland passed an amendment abolishing slavery. The following morning, the clerk of the Supreme Court announced that “the great and good Chief Justice is no more.” He served as chief justice for 28 years, 198 days, the second longest tenure of any chief justice, and was the oldest ever serving Chief Justice in United States history …

President Lincoln made no public statement in response to Taney’s death. Lincoln and three members of his cabinet — Secretary of State William H. Seward, Attorney General Edward Bates, and Postmaster General William Dennison — attended Taney’s memorial service in Washington. Only Bates joined the cortège to Frederick, Maryland for Taney’s funeral and burial at St. John the Evangelist Cemetery. After Lincoln was re-elected, he appointed Salmon P. Chase, a strongly anti-slavery Republican from Ohio, to succeed Taney.

As noted above, Taney (a Democrat) was succeeded by Salmon Chase, a Lincoln appointee:

In June 1864, Lincoln surprised Chase by accepting his fourth offer of resignation. The Republican Party had at that point already nominated Lincoln as its presidential candidate and the Treasury was in solid shape, so Lincoln no longer needed to keep Chase in the cabinet to forestall a challenge for the presidential nomination. But to placate the Radical wing of the party, Lincoln mentioned Chase as a potential Supreme Court nominee.

Chase’s political affiliation changed over the years:

• Whig (before 1841)
• Liberty (1841–1848)
• Free Soil (1848–1854)
• Republican (1854–1868)
• Democratic (1868–1873)

Per PolitiFact, Taney died 27 days before the Election of 1864. Ginsburg died on September 18 2020, 46 days before the 2020 Election. To date, Taney’s death on the bench was historically the closest in proximity to a looming election. By all accounts, Lincoln’s post-election appointment of Chase was a far less pressing issue due to the fact the Civil War did not end until 1865.

A law review article from 1981 [PDF] cited by PolitiFact addressed the political climate at the time of the 1864 election, as well as the dynamic between Chase and Lincoln:

During the campaign Roger B. Taney, Chief Justice of the United States Supreme Court, died. His death on October 12 required Lincoln to replace a jurist who had served on the Court for twenty-eight years. The President was not without candidates. Associate Supreme Court Justice Noah Swayne and Postmaster-General Montgomery Blair both vied for the position. Senator Charles Sumner supported Chase and along with other Republicans urged his appointment. Chase, who had as early as 1863 indicated his interest in the Chief Justice position, would not openly solicit the appointment. He did, however, write Sumner that he would accept it if it were offered and Sumner showed this letter to the President. Lincoln delayed the appointment until after the election. On December 6, he sent Chase’s nomination to the Senate where it was unanimously approved. Seven days later Salmon Portland Chase was sworn in as the sixth Chief Justice of the United States Supreme Court.

An often repeated theory about Salmon Chase is that Lincoln appointed him to the Supreme Court to neutralize him as a presidential rival. This seems unfeasible. Chase’s threat to Lincoln in 1864 was totally non-existent by the time of Taney’s death. A threat four years hence was also unrealistic. In addition to the question of Lincoln’s seeking a third term, Chase had never proved a really viable opponent earlier when he was at the height of his political career. In both 1860 and 1864, he had failed to organize an effective campaign and to gain the support of significant party vote-getters. To appoint Chase to the Supreme Court, therefore, would have been an unnecessary political tactic. A better explanation is that Lincoln understood and appreciated Chase. He knew Chase to be consistently loyal to his own principles, especially in his attitude toward slavery and the rights of the black man, and to be religiously conscientious. Unfortunately, this understanding was notably one-sided. After years of much official and some personal association, Chase wrote about the President in his diary: “I feel that I do not know him.”

Like Ginsburg, Supreme Court Justice Antonin Scalia died in an election year (2016); and as in 2020, partisan squabbling over the vacancy centered on the election’s outcome and the future of the court. By contrast, Taney’s bench vacancy did not appear to be in any way similar, as Lincoln appeared to quietly wait until December 1864 to appoint Chase. A post-debate Washington Post item about Harris’ “little history lesson” noted:

Congress was in recess until early December [1864], so there would have been no point in naming a man before the election anyway. Lincoln shrewdly used that to his advantage. If he had lost the election, there is no evidence he wouldn’t have filled the spot in the lame-duck session.

Lincoln was, of course, reelected. And the day after the Senate was back in session, he nominated Chase for chief justice. He hoped the august appointment would “neutralize” Chase’s designs on the presidency. (It didn’t.)

So Harris is mistaken about Lincoln’s motivations in this regard. But there’s one thing Lincoln definitely supported that Harris has yet to weigh in on: court-packing.

In 1863, he and Republicans in Congress passed a law to create a 10th Supreme Court seat for largely partisan reasons. All told, Lincoln appointed five justices in just four years and five weeks as president.

PolitiFact assigned somewhat different motives to Lincoln’s political machinations, concluding:

The Biden campaign pointed PolitiFact to a tweet during the debate by historian Michael Beschloss … Two historians we contacted weren’t convinced.

“I don’t think there is a definitive answer” for why Lincoln waited, Stephen E. Maizlish, a historian at the University of Texas-Arlington and biographer of Chase, told PolitiFact. “Abraham Lincoln was a master politician and kept his cards close to the vest until he was ready for a decision.”

“It is fair to say Lincoln waited until he felt he had the authority, but I think there will always be questions,” Maizlish added.

Burlingame suggested Lincoln’s move was a combination of risk-aversion and logistical concerns.

“He evidently did not want to antagonize conservatives during the campaign,” Burlingame said. “Congress was out of session and not scheduled to reconvene until early December [1864]. Lincoln doubtless thought that it was inadvisable to summon a special session in the midst of a presidential campaign when his chances of reelection looked very good. Besides, members of Congress were busy stumping for their own candidacies.”

All that analysis made one thing clear — regardless of the known timeline between Taney’s death, the election of 1864, and Chase’s appointment — there was no evidence of any statement made by Lincoln about waiting to fill the seat. Even when they were in disagreement about his motives, historians concurred that Lincoln was almost certainly unlikely to disclose his reasoning or even acknowledge the proximity of Taney’s death to the election as he “kept his cards close to the vest.”

Summary

During the October 7 2020 debate between Harris and Pence, Harris quoted Abraham Lincoln (or “Honest Abe”) as saying of filling the Supreme Court vacancy caused by Taney’s 1864 death prior to the election:

“It’s not the right thing to do. The American people deserve to make the decision about who will be the next president of the United States. And then that person can select who will serve for a lifetime on the highest court of our land.”

Although it’s historically true Taney died 27 days before Lincoln’s 1864 re-election, there is no record he that made any public statement about the vacancy, election, or even deferred Chase’s appointment for the specific reason of a pending loss. Lincoln won the election handily, and Congress was not in session until December 1864.

Historians speculate on Lincoln’s political strategy and even suggested that he might appoint Chase in a “lame duck” scenario, but the claim that Lincoln said outright or even publicly implied that it was a decision that the American people deserved to make about a new appointee is not supported by historical accounts; however, as historians have noted, there is no definitive answer about his motives.