Obama could seek history’s guidance
In the current controversy over filling the Supreme Court seat left vacant by the passing of Justice Antonin Scalia, an intriguing Buffalo connection emerges between today’s headlines and a bit of presidential history.
The last Democratic president to attempt to fill a Supreme Court vacancy in the face of a Republican Senate majority was Phillips Lytle LLP attorney and Buffalo’s own Grover Cleveland, in 1895.
The wrinkle is that it was actually the ascendance of the Republican opposition that enabled Cleveland to get his nominee confirmed.
Cleveland, a former New York governor, had twice had his prior court nominees rejected due to the opposition of his own party’s – and his own state’s – powerful senator, David Hill, D-N.Y. Ironically, Hill had served as Cleveland’s lieutenant governor and succeeded him as governor. The roots of the political antipathy between Cleveland and Hill are unclear, but may involve a rivalry between Hill and Albany’s legally prominent Peckham family. Hill engineered the rejection of Cleveland’s nomination of Wheeler Peckham to the Court (the fallback was the successful appointment of Louisiana’s Edward Douglass White to the vacancy).
However, when the Republicans captured the majority in the 1894 midterm elections, Hill was weakened, allowing Cleveland in December 1895 to nominate Peckham’s brother, Rufus Wheeler Peckham, who was confirmed in just six days and took his seat on the court in January 1896.
Photos of Cleveland do not suggest physical agility, but clearly, he well understood political jiujitsu.
Thus in the present potential impasse, the president could do worse than to seek history’s guidance and ask himself: “What would Grover do?”
James Kevin Wholey
Partner, Phillips Lytle