Constitution Daily

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A look at the closest Court confirmation ever

October 6, 2018 by Sheldon Gilbert


Today the U.S. Senate voted to confirm Brett M. Kavanaugh to the U.S. Supreme Court by a vote of 50-48. Although the vote margin is narrow, it is not the narrowest margin in Supreme Court history. That distinction goes to Stanley Matthews, who was confirmed by a vote of 24-23 in 1881. No other Justice has been confirmed by a single vote.

On January 26, 1881, President Rutherford B. Hayes nominated Matthews to fill the vacancy created by the retirement of Justice Noah Swayne. At the time, Hayes was a lame-duck president: James Garfield had won the presidential election just two months earlier and would take office two months later, in March.

Matthews resigned from the U.S. Senate to accept the nomination, but his nomination immediately faced significant opposition from his former Senate colleagues on several grounds. Many of the criticisms of Matthews seem to originate from broader criticisms of Hayes, who is among the most controversial presidents.

First, critics argued that the Matthews nomination was the result of improper patronage or even nepotism. Hayes and Matthews shared a close relationship: Matthews served under Hayes in the Civil War, married Hayes’s daughter, and is arguably responsible for Hayes winning the presidency in 1876 after one of the most contentious elections in American history.

Democratic candidate Samuel Tilden won the popular vote in the 1876 election. But Hayes and Tilden disputed how 20 of the Electoral College votes would be allocated. Whether those votes went to Hayes or Tilden would determine the outcome of the election. Congress created a bipartisan Electoral Commission to settle the dispute over the electoral votes,

Matthews represented Hayes before the Commission, which ultimately voted 8-7 to award the 20 votes to Hayes. For the next four years, Democrats questioned the legitimacy of Hayes’s presidency, even nicknaming him “Rutherfraud” Hayes. For many Democrats, questions about the legitimacy of Hayes’s presidency likely colored their views on Matthews’s Supreme Court nomination.

Second, some critics claimed that Matthews was beholden to the railroad industry. Matthews represented the railroad industry in private practice. His clients included one of the most famous 19th-century railroad tycoons, Jay Gould, who at one point controlled the largest railroad company in the country.

Many considered Hayes himself to be too friendly to the railroads. In Hayes’s first year in office, railroad labor strikes and riots broke out across the country, and Hayes ordered federal troops to quell riots in at least two states.

Third, Matthews had provoked the ire of some of his fellow Republicans by supporting silver to pay back public debts. Ironically, even though some claimed Matthews was too close to Hayes, he and Hayes disagreed on the silver proposal, which Hayes vetoed.

Fourth, some critics claimed that Matthews was an unprincipled political opportunist because although he claimed to be an abolitionist before the Civil War, in 1859 he prosecuted a newspaper editor for helping runaway slaves.

And finally, some Democrats were frustrated that Republicans had controlled the White House for 20 years—since President Abraham Lincoln’s election in 1861—all but locking Democrats out of the Supreme Court. Hayes had already successfully appointed two Justices to the Supreme Court before he nominated Matthews.

All of these criticisms converged into a perfect storm for one of the most antagonistic confirmation battles in Supreme Court history. The Republican-controlled Senate refused to confirm Matthews while Hayes was president, but when Garfield took office in 1881, he re-nominated Matthews to the Supreme Court.

Garfield faced criticism from nearly every corner for re-nominating the controversial Matthews. For example, the Boston Journal wrote that although “there can be no doubt” that Matthews was a “brilliant lawyer,” the paper worried that he lacked “that balance necessary to make him a member of the highest court in the Nation” and he failed to display the “judgment and judicial demeanor which are requisite in a Justice of the Supreme Court.” And the New York Times editorialized that Garfield had “repeated one of the most injudicious and objectionable acts of his predecessor,” but worse, had done so “without [Hayes’s] excuse” of a “personal debt” to Matthews.

To complicate Matthews’s nomination even more, when Congress convened on March 4, 1881, the Senate was split evenly, with thirty-seven Republicans, thirty-seven Democrats, and two independents. The Senate that convened in the 47th Congress is considered one of the most-gridlocked in history. Nevertheless, on May 12, the Senate voted 24-23 to confirm Matthews, with Republicans and Democrats on both sides of the vote.

Critics claimed that Matthews’s narrow confirmation to the Supreme Court’s would irreparably tarnish the Court’s reputation. For example, Harper’s Weekly featured a cartoon by famed political cartoonist Thomas Nash showing the Supreme Court’s “prestige” had collapsed under the weight of Matthews and his “one vote” margin. In strong rhetoric characteristic of many newspapers that weighed in on Matthews, the Philadelphia Times claimed that Matthews’s nomination was “one more step in the degradation” of the Supreme Court, that his narrow confirmation vote was proof “that a sort of moral dry-rot has taken hold” of the Senate, and that when Matthews “don[s] the robe” would be “the saddest thing yet witnessed by those who have watched with pain the gradual degradation of the bench.”

Although few now remember Matthews’s bitter confirmation battle, he is perhaps best remembered today for his 1886 opinion in the case of Yick Wo v. Hopkins, which held that San Francisco violated the Equal Protection Clause of the Fourteenth Amendment by applying a laundry-shop regulation in a discriminatory fashion against Chinese laundry-shop owners.

Sheldon Gilbert is a Senior Constitutional Fellow at the National Constitution Center.


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