Setting Precedents

WWTJD_1305 Setting Precedents.jpg
The Senate’s role is to make sure that somebody wholly unfit for that office is not confirmed, especially for a life-tenured appointment.
— Clay S. Jenkinson portraying Thomas Jefferson

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The following is a rush transcript.

DS: 00:00 Good day citizens and welcome to What Would Jefferson Do?, our weekly opportunity to discuss current American events with President Thomas Jefferson, who is seated across from me now. Good day to you, Mr. President. 

CSJ as TJ: 00:15 Good day to you, citizen. 

DS: 00:17 Mr Jefferson, we received an inquiry from one of your listeners, Mr. Irvin Weeks. He writes, 'dear Mr Jefferson, what do you think of the tug of war over the recent appointment to the Supreme Court. One party says, wait until after the election, and the party in power says, no, do it now.' He says that you said the supreme court is a cat creeping up on our liberties. What do you say, Mr. President? 

CSJ as TJ: 00:44 Well, first, the world belongs to the living, not the dead. This is an episode in your own lifetime, and my life spanned from 1743 to 1826, and I'm always reluctant to jump into situations that we could not have anticipated. I can tell you the principle of the thing. Elections matter. The president has a right to surround himself by people of his own political persuasion. That's why elections matter. In my time, the cabinet was very small, but the president named people to the court systems. I'm not a fan of the court system. I think it's the least democratic, least republican branch of our government and that it should have a merely advisory capacity, but it's still the case that the president must nominate justices, and then the senate, performing its work giving advice and consent, examines that person to see if he's fit to sit on the court. In my view, that's the only legitimate question the Senate can ask. The president is absolutely entitled to put whom he pleases in our courts, so long as that person is able, intelligent, discerning, fit, but one should not look at the politics of that person. That's neither here nor there because the president is the one who gets to nominate, and the Senate's role is to make sure that somebody wholly unfit for that office is not confirmed, especially for a life tenured appointment, but it is not for the Senate to bandy about in policy with a prospective justice. 

DS: 02:26 It seems that the supreme court, during my lifetime, sets a lot of precedents. In fact, a famous historian, Alistair Cooke, wrote that every great controversy in America becomes a court case. Sometimes, I think that's true. 

CSJ as TJ: 02:41 Well, the constitution was written in 1787, ratified in 1788, and the courts were the weakest of the three main branches of our government, but we knew that they would have to examine legislation and acts of the executive to determine whether they were constitutional, and so the court's role is to make sure that all that is passed by way of legislation and all that is undertaken by any single administration fits within the the tight confines of what is regarded as constitutional. I would not have the court have veto power over acts of legislation, but I certainly would have it have an advisory role. If you didn't have some entity protecting the constitution, then a runaway congress could do all sorts of things that had no basis in the bylaws, in the rule of law, the social contract that the American people had created for themselves in 1787 and ratified. 

DS: 03:42 Well, back to Mr Weeks' original question, Mr Jefferson, should the Senate stop their deliberations or should they go ahead? 

CSJ as TJ: 03:50 Well, I was actually part of the first time that this became controversial. Adams was dis-elected. The election of 1800 was a repudiation of federalism, and to a certain degree a repudiation of my friend John Adams. He knew the results of that election in the fall of 1800 and yet he still appointed John Marshall to be the chief justice of the Supreme Court, and a number of lesser officers, that really offended me. He had been privatized. He had been retired by the American people and it then seemed to me that it would be only decent for him to leave to me to name the next Supreme Court justice, but his wife Abigail, in a letter that she wrote me in 1804 said, 'look, Mr Jefferson, I've read the constitution as well as you have. And the president is the president up until the moment that he retires. Now, that was on March 4th, 1801. My husband, John Adams, had an absolute right to appoint anyone he chose up until that moment,' and I have to say, even though I took it as ungentlemanly, what he did, what he did was certainly constitutional. 

DS: 04:51 Thank you very much, Mr Jefferson. 

CSJ as TJ: 04:54 You're welcome, sir.

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