Recently the United States Senate went nuclear on the filibuster concerning Supreme Court nominations. Going nuclear for one vote sounds like trying to kill a mosquito with a shot gun; but it does makes a lot of sense when one man’s vote can decide the fallout of a Presidential election.
The 1876 Presidential election,which got a lot of attention after the 2000 contested Presidential election, was one that was fraught with fraud and voter irregularities, intimidation, violence and shooting clubs, particularly in the South. The Democratic candidate Samuel J. Tilden had a slight lead over Rutherford B. Hayes in both the popular and Electoral College vote. However, there were 20 disputed electoral votes. Tilden eventually needed just one of those votes to give him the majority needed to claim victory.
The Electoral College has been the bane of the Democratic Party. Thomas Jefferson first got ensnared with Electoral College when he and Aaron Burr tied for the 1800 election. It took the House of Representatives, which was full anti-Jefferson Federalist, 11 days and 35 ballots to realize they hated Burr more than Jefferson and that the Electoral College really wanted Jefferson as president. The Twelfth Amendment was passed to make sure that snafu would not happen again.
In 1824 Andrew Jackson saw Henry Clay steal his election in the House when Jackson failed to win a majority of the electoral votes in what was called the “Corrupt Bargain.” It was a deal that made John Quincy Adams president and Clay the Secretary of State. At that time, four of the first six presidents had served as Secretary of State and Jackson’s supporters believed this was Clay’s attempt to position him for a run at the presidency. When Jackson was elected president, he took out his revenge on his political opponents and moved his policies through with the help of the “spoils system.”
But in 1876, parts of the South were still under Radical Reconstruction. Union troops were still garrisoned around the South to ensure that Reconstruction civil rights continued and to ensure Republican control of state governments. The South was ready to throw off the yoke of Radical Republican rule and run Northern carpetbaggers and scalawags out of Dixie. In fact, there were Democratic majorities in all but three Southern States: Florida, South Carolina and Louisiana.
The 1876 election was the first Presidential Election in 20 years where a Democratic Candidate won a majority of the popular vote. The close election was compounded by voting irregularities and was contested in the three Southern states where the Grand Old Party was barely holding on. There was one electoral vote being contested in Oregon.
Flash back to 1869 when Congress passed a new Judiciary Act. This Act expanded the Supreme Court to nine justices. During the Civil War, and the years following the war, Court membership slipped to seven. The following year President Ulysses S. Grant chose two new justices, William Strong and Joseph P Bradley, both were sworn in March of 1870 and both would play a role in the 1876 election, Bradley more so than Strong.
As Inauguration Day approached like a lumbering fire truck, attempts to settle the matter brought about an extraordinary committee. For the first time since the Civil War, the Democrats were in control of the House of Representatives. The Republicans held the Senate with the White House up for grabs. It was the beginning of the “Solid South.” The old Confederacy states were falling back into the hands of Democrats – except for the three contested states.
In a moment of bipartisanship, despite that the country was still waving the bloody shirt over the Civil War, Congress devised a sure-fire compromise to grid lock who would get the 20 contested electoral votes. It created a 15-member Electoral Commission of seven Democrats and seven Republicans with one so-called independent member. To further complicate matters, the commission was composed of five Senators, five House members and five Supreme Court Justices. A real All-Star team of who’s on first. The swing vote in this ensemble was supposed to be Justice David Davis.
With so much at risk, backroom deals were being tossed around like horseshoes at a backyard barbecue. Illinois Democrats tried to get out in front of the deal. After the commission members were chosen, Illinois Democrats elected Davis to the Senate. Their thinking was that this might help solidify Davis’s Democratic leanings. Davis, however, recuses himself. Enter the one man with the one vote or in this case 20 votes: moderate Republican and Supreme Court Associate Justice, Joseph P Bradley, as the crowd surfer in the political mosh pit.
In no great surprise, the commission voted strictly along party lines: eight votes for Hayes and seven for Tilden giving Hayes a 185-184 victory and the White House. Starting with Lincoln the GOP would control the White House for 56 of the next 72 years. Although they did impeach Andrew Johnson, supposedly one of their own. The Republicans would keep a firm hand on the White House through the Gilded Age and right up to the Great Depression.
The Democrats did not come away empty handed. They got Federal troops withdrawn from the South, which ended Reconstruction. Enter the age of Jim Crow and any attempts at civil rights in the South for another 100 years. They also got a Southern Democrat in Hayes Cabinet, the Post Master General. Finally they got a promise that there would be federal support for the Texas Pacific transcontinental southern railroad route. The railroad never happened. Business will always trump politics.
The Senate may have nuked a big part of the filibuster enabling it to get one man’s vote on the Supreme Court. The fallout from the blast, however, may not be radiated for years to come.
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