The Supreme Court is a Big Issue

In another place, we proposed a new process for confirming Supreme Court nominees. Our idea was to “interpret” the Constitution’s clause about “advise and consent” to allow the Senate Judicial Committee to would draw up a list of judges, acceptable to an equal number of Democrats and Republicans on the committee, then submit the list to the president, for his/her consideration.

That would reduce the anxiety about voting for president, especially this year, when many people say they would NEVER vote for their candidate, except that they want a conservative or progressive replacement for Scalia. It would also begin to reduce the partisanship on the Court, which until recent years was ideological, but not blatantly party-loyal.

Right now, we have four liberals and four conservatives on the Court. And if Hillary Clinton becomes president, we may never see a nine-member Court again, if (you guessed it) Ted Cruz has his way.

In a vintage return to his confrontational style, Sen. Ted Cruz indicated that Republicans could seek to block a Democratic president from filling the vacant Supreme Court seat indefinitely. . .

“There will be plenty of time for debate on that issue … There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice [Stephen] Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have,” Cruz said, in remarks first reported by the Washington Post.

Cruz was referring to Justice Stephen Breyer’s attempt to quell anxiety about the evenly divided court.

Despite missing a ninth member for more than eight months now, Supreme Court Justice Stephen Breyer expressed confidence Monday the high court would function properly if thrown into the crucible of presidential politics.

Citing past periods in US history when the court had an even numbers of justices, Breyer told a panel on MSNBC, “the mechanics work about the same” even in the absence of a potential deciding vote.

Yeah. Right. That’s simply not true. When a case meets a deadlock 4-4 vote in the Court, it’s the same as if the Court did not hear the case at all. The lower court ruling stands, and the losing side has no recourse. It’s as if we have no Supreme Court at all in such instances.

Breyer seems to be suggesting that the Court would work just fine if we have another situation, such as the Bush V. Gore case in 2000. But that case was decided 5-4 in Bush’s favor. With an eight-member court, whatever the lower court decides will stand, and we’re in a case of Russian roulette as to which lower court decides what. And, back to Bush V. Gore, the US Supreme Court overruled the Florida Supreme Court in that matter, so you know what that means. . .

Cruz is not the only one who has suggested that Republicans should obstruct all Democratic nominees. John McCain said, basically, the same thing, but then backed off, saying that, of course, the job of the Senate is to review qualifications, not just look at party affiliation.

Sen. John McCain (R., Ariz.) on Monday said that Republicans wouldn’t confirm any Supreme Court nominees picked by Hillary Clinton if she were elected president. . .

By suggesting that Republicans wouldn’t fill any vacancies during a four-year Clinton term, Mr. McCain essentially suggested that Republicans might abandon that strategy in favor of a new one to deny a Democratic president any Supreme Court nominees at all. Such a blockade could leave the Supreme Court deadlocked, as it has been for months, and unable to set national precedents on divisive issues. . .

. . .spokeswoman Rachael Dean said. “. . .Senator McCain will, of course, thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications as he has done throughout his career.”

However, it appears that Democrats may win control of the Senate. If that happens, they could simply change the rules. Democrats did that when they last had control, because Republicans were blocking any and all nominations by the President. Harry Reid just changed the rules, so that all nominees could be approved with a simple majority (51), not the super-majority (60) previously needed. However, the rule change did not apply to Supreme Court nominees. If Democrats take the Senate, and Republicans obstruct the Supreme Court, that rule could be changed, too.

An indefinite GOP blockade of a Supreme Court nominee would almost certainly lead to an erosion in the Senate’s super-majority requirement. Senate Minority Leader Harry Reid has already suggested lowering the bar for Supreme Court nominee from 60 votes to a simple majority. Under Reid, Democrats changed the Senate rules to allow all nominees but Supreme Court appointments to be approved by a majority vote.

“We need to treat it like the constitutional crisis it will be if Democrats don’t take back the Senate majority,” Reid said on Wednesday night in an email to members of the liberal Progressive Change Campaign Committee. “The Supreme Court could dwindle to 7, then maybe 6, Justices. It would turn our Justice system and our democracy on its head. The Founding Fathers would roll over in their graves.”

Justice Clarence Thomas also weighed in.

Justice Clarence Thomas lamented that the broken confirmation process was a sign of larger problems. Speaking to the Heritage Foundation to mark 25 years on the Supreme Court, Thomas did not cite the [Merrick] Garland blockade but noted a decline in civil behavior.

“We have decided,” he said according to the Associated Press, “that rather than confront disagreements, we’ll just simply annihilate the person who disagrees with me. I don’t think that’s going to work in a republic, in a civil society.”

We are in the worst partisan abyss of our lifetime. President Obama famously said, “elections have consequences.” That includes choosing Supreme Court members. Yet, he was not allowed to act as president during almost the last full one-quarter of his term, in this regard. A quasi-coup.

Way back, before autumn, before summer, before spring, in the dead of winter, Senate Leader Mitch McConnell said that the “people should decide” who is the next Supreme Court Justice—that is, forbid Obama his choice, and agree to the nominee forwarded by the “voice of the people” (the next president). Now, Cruz and McCain are going back on even that logic. They’re blatantly saying that the “will of the people” argument was a ruse, and they simply want to have control, one way or another.

The Supreme Court should be above such petty partisan nonsense. That’s why we think nominees should be suggested by an equal number of partisans on the Judicial Committee, and suggested to the President. If he or she doesn’t like the choices, they should draw up a new list.

Not only would that remove “voting anxiety” from the rest of us, because the election wouldn’t be “life or death” on issues that matter to us. It would also raise the Court from petty partisanship, and also keep the philosophy of new justices within a reasonably centrist range—focusing on the law and the constitution, not purely partisan idiocy.

Of course, there’s a simple alternative that would be easier to implement: Drop the pretense of altruism and accept that both parties want to “pack the court.” In our current era, any politician who claims to be a “statesman” (“statesperson”?) is probably lying. Instead of even trying to pretend the decision is based on jurisprudence, admit that the senators are hacks who just want their own way.

Once partisanship is acknowledged, the president would nominate his or her choice, but if the other party objects, the nominee would have to be withdrawn in some short period, such as a month. Start over. And over. Eventually, they would agree, or we’d be left with a Court with no members at all.

This would be another way of getting to the goal of a reasonable Supreme Court, without extremists from either side.