Mark Joseph Stern is a particularly shameless court-watcher for the Left. He is a classic hack. His default operating mode is spin, aided by selective reading and a determination to ascribe the absolute worst motives to his opponents, all to the great injury of his misled audience. There is no value in reading him, unless you are a court nerd monitoring left-wing spin.
In a recent column, however, Stern crossed the line into substantial factual error, and I sent a letter to Slate’s corrections box. Out of courtesy, I waited a week for Slate to clean up its own mess. They have taken no action and have not responded to my email. So, for the record, here it is:
Dear Slate,
In a September 22nd article entitled, “Expand the Court,” Mr. Mark Joseph Stern stated:
There is, of course, a key difference between McConnell’s antics and court expansion: Blockading a Supreme Court nominee for 11 months was completely unprecedented in American history; expanding the court is not. To the contrary, Congress has altered the size of the court many times throughout history, occasionally for political purposes…
This is erroneous. The longest Supreme Court confirmation battle in history began when Justice Smith Thompson died on December 18, 1843, less than a year before the 1844 presidential election. Four months later, Justice Henry Baldwin died. Baldwin’s seat would remain unfilled for 28 months, until August 4th, 1846.
Over the course of the conflict, which I wrote about for fun here and which you can explore for yourself on the Wikipedia (I suggest starting here), Judge Reuben Walworth was nominated by President John Tyler on March 13th, 1844. The Senate, which had political disagreements with President Tyler and wanted to keep the seat open until after the presidential election, refused to act on it. This may sound familiar.
After the Senate tabled Walworth’s nomination without action, Tyler renominated him in June 1844, but the congressional session ended, causing Walworth’s second nomination to lapse. When Congress resumed for the lame-duck session, Tyler immediately renominated Walworth. Finally, with his term nearly over, Tyler gave up on Walworth, withdrawing him on February 6th, 1845. Tyler nominated Samuel Nelson instead (who was confirmed in just 10 days).
All told, the Senate blockade against Judge Walworth lasted 10 months, 24 days. Judge Garland was blockaded for only 9 months, 18 days.
The vacancy in Justice Thompson’s seat was open for 14 months; the vacancy in Justice Scalia’s seat for only 12.
Normally, I would overlook a little hyperbole about how something is “unprecedented in American history,” since the precedent in this case is over a hundred years old, and I don’t expect everybody to know about it. Most people, when they talk about “American history,” seem to just mean, “American history since World War II.”
However, in this case, the rest of Mr. Stern’s argument in that paragraph is built around several other precedents that are more than a hundred years old. Thus, it seems like a serious oversight to omit the Tyler-Clay-Polk Judicial Battle Royale of 1844-46. The truth is that the Republican blockade of Garland had precedent (Walworth’s saga being only the most dramatic example), and so does Stern’s court-packing plan.
I look forward to your prompt correction.
Thanks,
James J. Heaney
***
P.S. You may be wondering whose court reporting you should be reading, if not Stern’s.
IDEALLY, read the actual opinions of the justices whose opinions you DISagree with. Supreme Court opinions are written with a general audience in mind, and several justices, current and recent, are better writers than anyone in court reporting anyway. They explain themselves much better than their opponents. There’s really no good reason to get your views about the opposing justices from reporters who hate their guts when you could be getting it from the justices themselves. And, yes, you should start with the justices you disagree with, to find out their reasons; you already know the reasons of the justices you agree with!
ALTERNATIVELY, read SCOTUSBlog.com. Nobody offers more stubbornly neutral, thorough coverage of the Court. They routinely hold “symposia” on controversial questions where practicing lawyers on both sides debate the issues in a really productive way. Plus, SCOTUSBlog is often the easiest place to find the justices’ actual opinions!
FAILING THAT, if you are hellbent-for-leather on getting involved in the partisan hurly-burly, read Vox’s Ian Milhiser for the Left and National Review’s Bench Memos for the Right. I will let the contrast in quality between them speak for itself.