LULU GARCIA-NAVARRO, HOST:
These political moves in Wisconsin and Michigan aren't really new. The principles at stake with so-called lame-duck appointments are as old as our republic. And in some ways, it reopens a debate that was settled in 1803 - Marbury v. Madison, a seminal Supreme Court case that's taught in high schools and colleges and law schools across the country. It was our nation's first experience with court packing, judicial appointments made by the outgoing party before transferring power and leaving office. It didn't establish a new law. But it set in place a set of norms that haven't been tested until recently. Norm Ornstein, a resident scholar at the conservative American Enterprise Institute, gives us a history lesson.
NORMAN ORNSTEIN: So here's the background. We had a very bitterly contested election in 1800.
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ORNSTEIN: The incumbent president, John Adams, lost to a man who was, at the time, his very bitter rival, Thomas Jefferson.
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ORNSTEIN: But right before Jefferson was scheduled to take office, Adams appointed a slew of judges and other top officials after a law passed to reform the judiciary that reduced the size of the Supreme Court by one - from six to five, so they wouldn't have ties - but added in a bunch of appeals court judges. And most of those - picked right before the new president came in - were members of Adams' party. And they all got commissions that went out, except some of the figures didn't get their commissions in time.
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ORNSTEIN: One of them, Marbury, was somebody who had been picked by Adams to be a justice of the peace in the District of Columbia. And when Jefferson took office, he said, I'm not going to send out those commissions. All of this was wrong - shouldn't have been done. And Marbury sued.
What John Marshall, the chief justice, ruled was that it was wrong for the new president, Jefferson, to block appointments, that it was OK for Adams to be able to pick these people but that the portion of the Judiciary Act that had established the courts was unconstitutional because it gave the court too much power over executive actions. And so he did not have - in his judgment, based on the law - the constitutional authority to force Thomas Jefferson to put Marbury in place.
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ORNSTEIN: John Marshall split the baby.
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ORNSTEIN: He didn't say what Adams did was completely wrong. But he also didn't alienate the new President Jefferson by forcing him to put in place people who had been picked at that late moment.
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ORNSTEIN: What ended up happening out of this is we didn't see such actions taken again. What the decision did was to set in place a new set of norms, saying if you lose, even if there is a transition period, it's the new people coming in who should have the ability to implement policies or to choose people that voters have decided are more in keeping with what they want.
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ORNSTEIN: I wish that Marshall had gone further. I wish that Marshall had said in his decision it is wrong for somebody leaving power to try and leave his imprint after the system has rejected the individual running for president and rejected, at the same time, the policy direction and the people who the Federalist Party put in place.
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ORNSTEIN: We know that a democracy is built on rules, on a constitution, on laws. But it is also built on norms. And if you don't follow the norms of a democracy, you can lose it very, very easily. Transcript provided by NPR, Copyright NPR.
