Tuesday morning on Bill Bennett’s radio talk show, C. Boyden Gray of the Committee for Justice responded to a question about the propriety of senators querying Supreme Court nominees on their views about particular issues by quoting Abraham Lincoln: “We cannot ask a man what he will do, and if we should, and he should answer us, we would despise him.” This quotation has been making the rounds lately, and the import of it is clear: There is supposed to be some sort of threat to judicial independence–or even to due process itself–if judicial nominees are pressed to state their views on legal and constitutional issues that might appear (or reappear) before the bar of the Court. Naturally it is being used by supporters of the White House to fend off any “litmus test” questions of too direct a variety from Democratic senators.
No sooner did I hear Gray recite this quotation than I had a look at Tuesday morning’s New York Times, which ran the same quotation in a front-page story by Todd Purdum. But Purdum added the next sentence in the quotation, which changes the import of the statement by about, oh, 180 degrees: “Therefore we must take a man whose opinions are known.” As Purdum noted, Lincoln was after a chief justice who would hold for the constitutionality of the government’s legal tender law (forcing people to take the federal government’s paper money in payment of private debts). Lincoln chose his Treasury secretary, Salmon P. Chase, who had helped draft and advocate the law, but who reversed course (five years after Lincoln’s death) and voted that the law was unconstitutional–a ruling that was itself reversed just a year later.
Encountering this quotation twice in one day–and with such drastically different readings of its meaning–I grew curious about it. I thought I’d read just about everything Lincoln wrote and said on the subject of the Supreme Court, and this remark was news to me, so I began a little quick research–made easier by the digitization of so many resources online nowadays.
There is no sign of this remark in Lincoln’s Collected Works–an eight-volume set from a half-century ago that is now online thanks to the University of Michigan and the Abraham Lincoln Association. But a little more searching in proprietary databases (to which I have access thanks to the fine librarians at Radford University) turned up a citation. It appears the quotation comes from a two-volume 1902 memoir by a retired politico named George Sewall Boutwell. After a long career that included stints as governor of Massachusetts, first commissioner of internal revenue, member of the House (where he led the impeachment of Andrew Johnson), and senator, Boutwell published Reminiscences of Sixty Years in Public Affairs at the ripe old age of 84. His report of a conversation with Lincoln about the Chase nomination was 38 years old by this time, but while everything else about his book–and about the man himself–has faded from memory, this one brief quotation has lived on, in law-review articles, popular histories of the Court, and journalism.
That’s it, folks. One witness, attesting to a conversation that may or may not have happened at all, in which Lincoln may or may not have said the remark now making the rounds. One witness, uncorroborated, relating in 1902 a verbatim remark purportedly made in 1864. Did Lincoln say it? I think we simply can’t know. Was Boutwell puffing up his own importance by “recalling” a conversation with the Great Man of the Age in such detail? I don’t know. When I have the book in hand (on its way to me from interlibrary loan) I’ll be able to judge that better by looking at the work as a whole.
But I have my doubts about the authenticity of this quotation. Let’s note first that Purdum’s more complete version in the Times conveys more of the sense of what Lincoln is reported to have said. I can add a little more to the front end, too, yielding this: “[W]e wish for a Chief Justice who will sustain what has been done in regard to emancipation and the legal tenders. We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it. Therefore we must take a man whose opinions are known.”
Study that for a moment. Now here is the reason I doubt the quotation is genuine: taken in full, and not truncated to its second sentence alone, it’s a damn fool thing to say, and Lincoln was no fool. I have no doubt whatever that Lincoln worried in 1864 about replacing the late Roger Taney with a chief justice friendlier to the enterprises of his administration. And I’m sure he thought that the most certain way to achieve such an appointment was to nominate a man who was a known quantity (or thought to be one) on many of the pertinent legal issues. But suppose that there was no one about whom such presumed certainty was possible. Do we really think that Abraham Lincoln would not seek to elicit some constitutional opinions from the potential nominees whom he considered?
Think about it this way. What Lincoln was after was knowledge–as much as he could get about a man’s constitutional views, in order to predict his future behavior once appointed to the bench. In 1864, too much was at stake to pussy-foot around about these things. Would Abe really shrink from asking a man directly about his views if he felt the need to ask? Would he really despise the man who frankly answered? I don’t see why he would do either one. The second sentence–the current favorite of Bush supporters eager to shield a future nominee from tough questions–might make a kind of sense standing alone, if we believed Lincoln held to some high-minded notion of the honorableness of ignorance. But flanked by the first and third sentences, it simply makes no sense at all.
Such is the authority of Lincoln that attributing this quotation to him (preferably its second sentence alone) is a powerful show-stopper in certain circles, especially Republican ones. Why, if Abe said so, we should all maintain a demure silence and refrain from imposing litmus tests on constitutional issues, or asking grown-up legal thinkers what they think about matters they ought to have a made a profession out of thinking about.
But as we can see, Lincoln was for litmus tests, not against them. So should we be. As in 1864, too much is at stake. Let us have a full airing in the Senate, with no questions out of bounds, and no demurrals by the nominee permitted except on the most precise points of actually pending cases. Want to know what a nominee thinks of Roe v. Wade? Or the prospect for a right to gay marriage under the equal protection clause? Or whether he or she agrees with the logic of Kelo on eminent domain? Ask! And don’t accept “I cannot compromise my future independence as a judge” as an answer. If the nominee has no opinion, that is one thing. But if he has one, the rest of us are entitled to know what it is, to the extent that it can be stated without entanglement in the particular fact patterns of particular pending or foreseeable cases.
The no-litmus-tests position is, in theory and in practice, indefensible. It is the counsel of fear, advanced for the best of motives but the worst of reasons by the friends of the president and the friends of the rule of law. We are past due for having a real debate in this country about constitutional principles in the context of a Supreme Court nomination. It’s a debate that conservatives–and the Constitution–can win, no matter what Lincoln may or may not have said.
–Matthew J. Franck is professor and chairman of political science at Radford University.