Whither Now, SCOTUS?
For over a year, now, Republican senators have been toying with a vacant seat on the Supreme Court. First, held Judge Merrick Garland hostage, claiming that the presidential election year dictated the delay. However…
As November 8 approached their candidate was suffering in most polls. So, the Republicans altered their argument from not filling the seat “now” to not filling the seat, ever. As Sean Spicer might say, “Period!”
Enter John McCain…
Senator John McCain (R-AZ) initially revealed this strategy in one October 2016 gaffe. "I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up." While he later walked this back slightly, he proved once again that in politics, a “gaffe” is when someone is caught telling the truth. But McCain wasn’t alone…
Soon after McCain spoke, another Republican Senator, Richard Burr (NC), was caught on tape saying, “If Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.”
That’s not where it ended…
Not to be outdone, Senator Ted Cruz (R-TX), a former candidate for the office with the privilege to name a Supreme Court Justice added, “There is certainly long historical precedent for a Supreme Court with fewer [than nine] justices…That’s a debate that we are going to have.”
“A Debate We Are Going To Have”
There is a complaint often echoed from the coasts to the heartland that the problem with our current political system is that compromise has lost its virtue. In short, it is said, closed-mindedness in Congress has overtaken what used to be the collective rational consideration of arguments and issues.
Well, then, let it be said by Democrats on this point:
The Republicans are right! They, indeed, have won us over:
Eight justices is plenty for the Supreme Court.
Who Needs a Ninth?
First, the requirement of nine justices is arbitrary and nothing in the Constitution requires it. Recounting this history, no less than Justice Stephen Breyer reminds us, “The court, when it began at the time of the Constitution’s writing, had six members. They had six members for several years… They had 10 members for several years after the Civil War. They functioned with an even number of members.”
But, those were ancient times, right?
Wrong! Lest one believe those were “ancient times” far removed from today’s political world, as recent as 1969 our Supreme Court functioned just fine for over two years with eight robed members.
Justice Breyer, What Say You?
There is perhaps no better “judge” of the functioning ability of the current court’s eight justices than Justice Breyer, himself. To parry political arguments claiming that eight justices will lead to intransigence Justice Breyer has cited the stark realities that only cold statistics can provide, “Half of our [decisions] are unanimous… The 5-4 cases are probably 20 percent, and it isn’t the same five and the same four” in each case.
Democrats, Take The Republicans' Arguments!
Open-minded Democrats can adopt another traditional argument of Republicans as well: Republicans fealty to federalism actually favors a court of eight as opposed to nine!
Republicans abhor the courts “interfering” in their realm by striking down “their” (read: state) laws and “legislating from the bench.”
Republicans also fervently desire the devolution of power from the National level to more localized bodies. Eschewing the ninth seat on the Supreme Court soundly satisfies this objective.
So What If We Stand on Eight?
Those “20 percent” of cases where Justice Breyer believes would otherwise be decided 5-4, would instead receive a 4-4 split vote. The result of a 4-4 decision, though, is what Republicans would otherwise be clamoring for, namely, the lower state or Federal court’s ruling, would carry the day.
Therefore, a Supreme Court as currently construed is more likely to lead to localities having a greater influence over the meaning of the laws that control them. Isn’t this exactly what Republicans are constantly craving?
The Appealing Pitch to Americans
Democrats can adopt these arguments and enthusiastically proclaim their agreement with Republicans in a way that stops short of impugning, neigh, even needing to consider, Trump’s Supreme Court nominee Neil Gorsuch’s qualifications.
Instead of arguments over filibusters and gotcha’ questions at confirmation hearings, Democrats should simply appeal to the American public with an offer of compromise based on the Republicans’ own argument advanced this past Fall and grounded in Justice Breyer’s on-the-spot observations. Eight justices can do the job.
So, Where Do We Begin?
Let's start with Sen. Chuck Grassley (R-Iowa) who chairs the Senate Judiciary Committee charged with overseeing the courts. Instead of convening confirmation hearings, Democrats should demand that he stand by his own arguments printed in the Des Moines Register back in October.
There, he pointed to periods where eight justices were sufficient. His opinion cited evidence including when Justice Jackson took a one-year leave of the Court to prosecute cases at the Nuremberg Tribunal, or when justices recuse themselves from particular cases due to connections that could cause others to call into question their objectivity.
In such instances, Grassley wrote, “The sky didn’t fall. So, despite hyperbolic rhetoric, the court will continue to function. And even cases that split evenly will likely be few and far between.”
So there's Grassley's choice: Hyperbole or Hypocrisy?
It's Called, "Legal Jujitsu"
Democrats would do themselves well and gain esteem with the public if they took the Republican’s arguments in favor of an eight-justice Supreme Court and said, “You know what? You’ve convinced me.”
The result, in the eyes of an America similarly split 50-50 at times, would be exposing another hallmark of Republican hypocrisy or the advancement of a bi-partisan plan for the Supreme Court.