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Merrick Garland’s Nomination a Repeat of the Midnight Appointments

By: Nelson Albino Jr. - Apr 26, 2016, 8:27 am
El juez Merrick Garland ha sido nominado por el presidente Barack Obama para presidir la Corte Suprema estadounidense. (WBUR)
Judge Merrick Garland has been nominated by President Obama to fill the seat left by Justice Antonin Scalia. (WBUR)

EspañolWhen United States Supreme Court Associate Justice Antonin Scalia passed away, questions were immediately raised about who outgoing President Barack Obama would nominate as a replacement before leaving the White House.

Republicans in the Senate and House in charge of approving such a replacement announced that the next president who’s going to be elected in the upcoming elections in November should make the decision, and not Obama. This created a political debate over whether it is correct for an outgoing president to nominate in an election year a judge for the highest court in the nation.

Obviously, during an election year and with a Republican controlled Senate, it would be difficult for President Obama to get his candidate confirmed. The Supreme Court is an institution that may be responsible for major changes to the country, whether positive or negative, and that is why everyone is so careful (especially senators) when voting for a candidates nomination. The story of John Marshall is a good example of this.

John Marshall lived during the late 18th century and early 19th century. During the time of his nomination, the President of the United States was John Adams — a member of the Federalist Party, who would be defeated in the 1800 presidential election, the election that Thomas Jefferson called the “Revolution of 1800.”

Adams was already a defeated president, but his party still controlled Congress. Despite that he was still in charge of the Executive branch, he was a politically weak president because his electoral defeat two months before Marshall’s nomination meant that the people did not support neither he, nor the federalist policies in favor of a strong central government.

John Marshall was the Secretary of State at the time of both Adams’ defeat and his nomination as Chief Justice. He was a moderate Federalist, but with strong nationalist beliefs. He was liked by many because he was a veteran of the American Revolution, diplomat, congressman, lawyer and finally, a member of the presidential cabinet. So Marshall nominated him, among other judges, in what would later be called “The Midnight Appointments.”

Time will tell whether Judge Garland’s nomination would repeat John Marshall’s story

But despite this long history, Adams’ defeat did not make this nomination something correct. Adams’ successor had not yet been confirmed, as both Thomas Jefferson and Aaron Burr received the same amount of Republican electoral votes and the House of Representatives at the time. In the end they decided in favor of Jefferson. Adams’ successor was not yet known at the time of the nomination, but what was clear is that the people democratically rejected both Adams and the Federalists.

None of this stopped Adams from nominating his own secretary of state, a federalist believer in the “Hamiltonian” ideas of a strong central government, which had already been defeated in the presidential election two months before. Adams was not interested in the people’s will and even without knowing his successor, but with his party defeated, the Senate confirmed Marshall unanimously, just five weeks before the new president’ inauguration.

Marshall was 45 years old at the time of his confirmation as Chief Justice of the Supreme Court and, although it was confirmed at the very last moment of the Federalists’ power, he remained in the position for 35 years, leading the highest court in the country during five presidential administrations. Since the Supreme Court with its judicial decisions, Marshall transformed the country from being a confederation of states with a weak central government to a powerful nation with a strong federal government at the expense of the states. Adams himself said shortly before his death that “the proudest act of his life was Marshall’s gift to the American people.”

Marshall can be the biggest example of a president’s power to change national policy for years after leaving office. He may have died 180 years ago, but he is the most powerful reason why Republicans in the Senate should oppose Judge Merrick Garland’s nomination.

Although, unlike the case of President Adams, the elections have not yet been carried out, there is no doubt that President Obama is following a precedent. The only thing that comes to my mind is the image of a proud John Adams, applauding Obama, knowing as he did two centuries earlier that Obama seeks to strengthen the central government at the expense of the states. The difference is that today the federal government is too strong and increasing its power would dismantle the Constitution; and it is the Supreme Court who must ensure that the Constitution is respected.

Marshall’s nomination as Chief Justice of the Supreme Court is a precursor to the event two centuries later.

Nelson Albino Jr. Nelson Albino Jr.

Nelson Albino Jr is a translation specialist with PanAm Post, a Puerto Rican who is also a writer and blogger. Follow him on Twitter @nalbinojr.