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Supreme Court Nominations

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As if 2020 has not been bad enough, with just a few weeks before the presidential election, the beloved Supreme Court justice Ruth Bader Ginsburg passed away. Not only did we lose a judicial icon, but her death caused a vacancy on the high court that is turning into one of the biggest fights of the Trump administration.

Back in 2016 when a justice passed, Republicans argued that a president in his last year should not nominate a new judge but should wait for the voice of the people in the form of the new president to make the next pick. At the same time the Democrats in 2016 insisted it was not only the president’s right but his duty to make the next selection. The differences this time are, first, both parties flipped their stances, somehow realizing they were wrong in 2016, and, second, this time Republicans have the numbers in the Senate to make the confirmation. The constitutionality of Trump’s decision to put forth a judge has been questioned. Historically and legally speaking, however, Trump does have the right and it has been done before.

There is no legal issue with Trump nominating a new judge; it is perfectly acceptable under the Constitution. The Democrats would have done so in 2016 if they controlled the Senate. The question is not a legal one but an ethical or fairness one. Is it right for Republicans to nominate a judge now when they blocked Obama’s pick in 2016? This question cannot be decided in court but, rather, in each person’s conscience. If it helps, we have seen a last-second appointment before and by a well-respected Founding Father.

I have written about the Election of 1800 so many times that most of my readers know the details by heart. Suffice it to say, it is my favorite election and it was one of the most heated and contentious elections ever. John Adams, equal only to Washington in importance when it comes to our freedom, lost his bid for a second term to his nemesis, Thomas Jefferson. Adams did not take it well. In sports parlance, he took his ball and went home by not even sticking around for Jefferson’s inaugural. However, before he left, he decided to leave Jefferson a small parting gift. This is important for the modern issues as well: after an election, the losing president is still the president until the next inaugural. In other words, even if Trump loses in November, he can still perform all his presidential duties up until January 20.

What Adams did in 1801 after he lost was not only install a new Chief Justice, John Marshal, but he also created a new level of federal judge positions so he could fill them with Federalists. By packing all the federal judgeships with his party, he took away Jefferson’s ability to nominate judges on any level for the near future. What was most amazing is that Adams made 42 nominations and the Senate confirmed them as a batch just two days before Adams left office.

All but three of the “Midnight Judges” took their places on the bench, but because of the lateness of the appointments, three never received their commissions. The commissions were basically left on the desk of the new Secretary of State, James Madison with a yellow sticky note saying “Please give these out.” Madison, upset by the new appointments, conferred with Jefferson who agreed not to distribute the remaining commissions. However, one of the judges, William Marbury, upset by Madison’s refusal, sued him for his papers. This became one of the most important court cases in history, Marbury v. Madison, but that is a story for another article.

Jefferson did not take Adam’s actions well. He blocked the courts from taking up any cases until 1803 out of spite. I am not sure it is helpful or not to see our Founders acting as petty as our current political leaders. Yet what we can learn is that in some ways politicians have not changed. Two days before he left office, Adams got 42 new judges pushed through. Jefferson then refused to allow the court to hear Marbury’s case for more than a year and did succeed in getting the last three blocked from the bench. What Adams did was perfectly legal; the only question for Adams, like Trump, is whether it was ethical. Both seem to think it is.


Dr. James Finck is a Professor of History at the University of Science and Arts of Oklahoma and Chair of the Oklahoma Civil War Symposium. For daily history posts Follow Historically Speaking at Historicallyspeaking.blog or on Facebook.

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Opinion

Couple marries again… for the first time

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When California couple Ann Shulman and Steve Colwell needed a copy of their marriage license for a business transaction recently, they turned to the file cabinet where they kept their important documents–but it wasn’t amid their birth certificates or passports. No matter. Shulman sent off a letter to the state’s Vital Record Office requesting a copy, and expected its arrival in a matter of weeks.

What she received instead came as a shock: a certified copy of the pubic record of marriages in California dating from 1905—with no record of their May 5, 1991 wedding. There appeared to be no such union in Marin County or in the entire sunny state of California.

Which meant… they weren’t legally married? How to tell Colwell’s 93-year-old Catholic mother that they had been living in sin all these years? Or their two sons, James and Daniel, 23 and 21 respectively, that they were illegitimate?

In the end they decided to do the right thing: to get married again, for the first time—thirty years later to the day. This time the nuptials took place in Front Royal, VA, near Browntown, where Shulman’s family has owned a farm for 56 years. The bride wore her original wedding gown with cowboy boots and a ten-gallon hat. They planned to honeymoon in Browntown.

Julie Langsdorf
Washington, D.C.

Ann Shulman and Steve Colwell on their first wedding day on May 5, 1991, and below, thirty years later to the day, in Front Royal.

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Court Packing

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In the pantheon of great American presidents, a few are always at the top. Lincoln usually comes to mind, then Washington, and Jefferson. In the 20th century, the president who makes every list is Franklin Roosevelt. What makes FDR interesting is that, unlike Lincoln, FDR was beloved in his own time. Because of the way he handled the Depression, it was not uncommon to see FDR’s picture hanging in homes in a place of honor. Don’t get me wrong. Some people had issues with this president, but most appreciated his efforts to relieve the nation’s pains. Yet there was one episode where he did receive rebuke from both sides of the political aisle and the population at large and that was his effort to pack the Supreme Court.

Here was the situation. When FDR took over the nation in 1932, we were in the midst of the greatest depression in our history. The president wanted to tackle as many problems as he could in his first 100 days (starting a precedent that has lasted till today). Many of his proposals became part of his alphabet programs like the WPA, AAA, TVA, and the CCC. One of his first and, it turned out, most controversial was the National Recovery Administration. The NRA, in an effort to reduce competition, created codes that did things like set prices. The problem for FDR was that in 1935 the Supreme Court ruled the NRA unconstitutional.

FDR, worried that more of his New Deal plans would be rejected by the courts, came up with a plan to get the courts on his side. He proposed adding a new judge for every member of the Court over the age of 70, which meant adding six new justices to the bench, enough to turn the tide of the court in his favor. He claimed the court was overworked and suggested the new justices could relieve some pressure. The problem was that most Americans and both sides of Congress saw it for what it really was, a power grab. Even though the Democrats held the majority in both houses of Congress, a vote for FDR’s measure failed. The failure was partly because one judge had begun voting for FDR’s programs, but also because the courts were seen as sacred and people feared FDR’s plan could destroy the separation of powers.

Constitutionally, FDR had the power to propose this court-packing scheme. As with many things, the Constitution is silent on the number of judges to the high court, simply saying in Article 3, Section 1: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

Congress passed the Judiciary Act of 1789, which set up the Court with six judges. John Adams dropped it down to five, but then Jefferson brought it back to six and then later, when the Federalist judges did not die fast enough, he moved it to seven. Later Jackson added two more as the population grew and more judicial districts were needed. The Civil War saw some jumbling as Lincoln moved the number to ten, only to be reduced to seven by Andrew Johnson. Finally, under Grant the number was put to nine and since 1869 it has remained that way.

Now, in 2021 President Joe Biden is considering legislation to increase the number of justices for the first time since FDR. The president’s reasoning is that the Republicans have gained an unfair advantage with Trump’s three new justices. Democrats are still understandably upset at Trump’s nomination of Amy Coney Barrett after Republicans blocked Obama’s nominee, Merrick Garland, in his last year. However, though understandable, what the Republicans did was legal, if not morally, correct. What Biden is trying to do is no different than FDR, who wanted to make sure the courts agreed with him. If Clinton had won in 2016 and liberal-leaning judges controlled the court, there would be no call for equality in the court coming from Democratic camps.

I normally try to explain history, not solutions, but this is one area where I believe the Founders failed. Not that their system failed, but they could never have foreseen how partisan we have become.

Judges are supposed to follow the law, not a party. I would propose a new amendment to the Constitution that goes back to the original number, six, or maybe eight. With an even number, the new law would allow Republicans to choose four and the Democrats to choose four. If a judge dies, then the party of that judge gets to choose the new one. I know this sounds crazy, but with an even number justices will have to compromise over the law and not political leanings.

If Biden decided to, he might be able to pull off increasing the number of judges. Historically Speaking, however, he would need to be extremely careful. FDR won his second election by carrying all but two states before he tried something so daring. Biden does not have that same type of support. FDR, who was beloved, was seen as going for a power grab. Biden, who is nowhere nearly as loved, may not be able to survive the hit.


Dr. James Finck is a Professor of History at the University of Science and Arts of Oklahoma and Chair of the Oklahoma Civil War Symposium. To receive daily historical posts, follow Historically Speaking at Historicallyspeaking.blog or on Facebook.

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Opinion

We’re persevering thanks to you!

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The COVID-19 pandemic has highlighted the courage, resourcefulness, and dedication of essential workers who toil day and night to ensure the safety and well-being of their fellow citizens.

Whether you’re a delivery person, nurse, mechanic, police officer, psychologist, grocery clerk, teacher, plumber, doctor, truck driver, social worker, pharmacist, electrician, or other essential worker, in your own way, you’ve helped members of your community make it through this difficult time.

To all of you, we say “thank you.” You’re the reason our community is making it through this crisis.

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Opinion

Have our elected officials forgotten who they work for?

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The Town and County still can’t get it together on issues, nor on Virginia’s Constitutional and Legislative laws.

Don’t you all feel that it should be a requirement that if you are going to run or seek a political seat that a course in American History and Civics should be part of the application, as well as reading the Charters of Town and County and passing a test on them?

Just because these “good ole’ boys” gatherings seem to neglect or ignore certain things on pertaining to how things are to be conducted or pursued because of political views getting in the way, shouldn’t allow them to comment in a public meeting about their opinions. – Like finding out facts and evidence before airing your comments on our law enforcement personnel. Don’t let emotions lead you to making a mountain out of a molehill.

Work together for the common good of this county and town. Stop the fussing and wanting things to go your way, look beyond your circle and see the whole range of voters you are working for!

Tenia Smith
Front Royal, Virginia

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Opinion

Executive Orders-Part III

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All Americans should be concerned about President Biden’s recent executive order on gun control. Try to forget for a moment, if you can, whether you agree with Biden or not and try instead to focus on the procedure. Biden is falling back on the two justifications that other presidents have used to skirt the Constitution, that Congress is not doing its job and that he is only following the will of the American people. However, is that statement true?  In some ways, yes. But, historically speaking, presidents were never supposed to represent the people’s will and sometimes non-action is action.

First, let’s look at the idea of representation.  Does the president represent the will of the people?  The answer is no.  That was never the Founders’ intention when creating the Constitution. Biden did win the presidency, but he only won the popular vote by 51.3%.  In other words, he really only represents about half of the ideas of Americans.  Even if the percentage was much higher, he represents the nation as a whole, not the people individually.  That is the job of Congress.  Congress is made up of both parties proportional to the political ideologies of the people.  Congress represents the will of the people.  Even if your representative is from a different party, congressmen represent all Americans virtually, so your ideas are represented – unlike the president who only represents his party.

This is exactly how the Founders envisioned it, but without the parties. The Constitution was written so that the president did not represent the will of the people.  If the Founders had wanted a popular vote to choose the president, they could have done so.  Instead electors are chosen to vote for the president. Although the people elect the electors today, that was not the case when the nation first started.  The point of the Electoral College is to actually separate the people from the president.  Congress is where there is a direct vote, at first only in the House, but today in both houses of Congress.  When a president makes an executive order, that goes against Congress. In fact, he is actually fighting the will of the people, not representing it.

Secondly, should the president act if Congress refuses to do so?  The answer is no.  The Constitution says, “All legislative Powers herein granted shall be vested in a Congress of the United States.”  No second clause stipulates, “or with the president in times of inaction or if things do not go the president’s way.”  This is American Government 101. Only Congress can make laws.

Thirdly, sometimes inaction is action. The president assumes that Congress is not doing its job if Congress does not pass the laws that he desires. All presidents who make this claim assume action is agreeing with them. In today’s particular case about gun control, however, Congress is not acting because it can’t.  Though most Democrats support gun reforms, not all Democrats do.  In other words, Congress is not making new gun restrictions because it does not have the votes in the Senate to pass any legislation.  The Democrats would need every vote, plus the vice-president to pass with a simple majority, let alone ten Republicans votes to pass the filibuster. The Democrats have neither.  There are some moderate Democratic senators who oppose the current gun control laws. In this case, the action is the Senate saying that it does not support current gun law proposals, which is different from the Senate doing nothing.

If the Congress, which represents the will of the people, decided against new laws and the president used an executive order to circumvent Congress to pass laws anyway, that makes the president a tyrant. The Founders were scared of a tyrannical president when they wrote our founding document, hence they put in checks and balances. Bypassing Congress goes against the very fabric of the Constitution.

Now that we have addressed procedure, let’s quickly address the content.  We need some common-sense gun laws. The mass shootings need to stop. However, the fact that one man and his pen can make such an important decision by himself, and against the wishes of Congress, is the reason we have the Second Amendment to begin with.  It was an armed citizenry that revolted against a tyrant in 1776. The Founders wanted Americans to have that right if needed again.


Dr. James Finck is an Associate Professor of History at the University of Science and Arts of Oklahoma in Chickasha. He is Chair of the Oklahoma Civil War Symposium. Follow Historically Speaking at www.Historicallyspeaking.blog.

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Opinion

The Last Shall Be First

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When I last wrote and referenced Black Lives Matter, I left out something crucial.

In the post-Vatican II Catholic Church there arose a concept termed “a preferential option for the poor.”  It means that God’s favor rests preferentially on the most injured people in any society. When I first heard the term, I asked what about me?  Doesn’t God love me?  I am not poor.

I have a brother and a sister and if one of them had a terminal illness I would pray for the one who is sick.  My preference would be the sick one.  Any parent would do the same. That does not mean that I do not love both of them equally.  It means the situation is not equal, not God’s love.

It is the same with Black Lives Matter.  White people hearing this phase rather naturally asked, “Don’t all lives matter? – Are you saying that my life does not matter?

All lives do matter, but history, especially recent history, tells us that some lives matter significantly more than others in many societies.  That is the essence of Black Lives Matter – the demand that white people recognize the profound cultural difference between the inherent value put on their lives, versus that of racial or other ethnic minorities.  Racism is a sickness, a disease and a crime, and its victims are black people and other minorities.  To continue to ignore racism’s consequences and its victims is to favor those who commit the crime of racism over the victims of that crime.

God’s favor rests with the victims of the crime of stripping the dignity from human beings, always has and always will.

Tom Howarth
Warren County, Virginia

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