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Winning the Messaging Battle, Part II

Yes–SCOTUS Can Function With Eight Members, Though Both Parties Politicized Senate’s ‘Duty’ On Nominations

With the late Justice Antonin Scalia being put to rest this Saturday (Obama isn’t attending the funeral), the questions about his vacancy, when to fill it, should the GOP hold the line etc. has dominated the news cycle. Both Democrats and Republicans are guilty of rushing into the politics of this before the funeral mass of the legal titan, though these are the times we live in now. Regardless, it was pretty clear that the left wants to fill this vacancy with someone to their liking to upset to supposed right-leaning tilt of the Court. Democrats like Sens. Chuck Schumer (D-NY) and Harry Reid (D-NV) had either made previous statements about stopping President George W. Bush’s appointees at all costs during the tail end of his presidency, or saying that presidential years are tough for judicial nominees; insinuating that maybe votes on confirmations should be left until after the election.


Of course, Schumer isn’t too happy about his past comments on Supreme Court nominations being dredged up, saying that if a vacancy had occurred; he would have taken up then-President Bush’s nominee. Yeah, I’m sure that’s how it would all go down, Senator (sarc). Playing Monday morning quarterback on a vote that never occurred is very easy to execute. And, as Gov. Chris Christie alluded to on the 2016 trail, “Washington gymnastics” and storytelling remain a legislator’s best defense against direct voter accountability. Sen. Reid penned an op-ed in the Washington Post, trying to cajole to back away from being “nakedly partisan” during the upcoming nomination period. Reid has even invoked the Founding Fathers, saying they’re probably rolling in their graves over the politics with this vacancy, which is rich coming from a man who’s done nothing but obstruct (do we have to mention the blocking of the child trafficking bill) since he was booted from being Majority Leader, wherein he nuked the filibuster for most Obama nominations.

We are entering uncharted waters in the history of the U.S. system of checks and balances, with potentially momentous consequences. Having gridlocked the Senate for years, Republicans now want to gridlock the Supreme Court with a campaign of partisan sabotage aimed at denying the president’s constitutional duty to pick nominees.


This constitutional duty has transcended partisan battles because it is essential to the basic functioning of our co-equal branches of government. By ignoring its constitutional mandate, the Senate would sabotage the highest court in the United States and aim a procedural missile at the foundation of our system of checks and balances.


First, who cares what Reid thinks? He’s entering the senioritis stage of his public career, as he’s out the door come January 2017. Of course, he can shots mouth off with zero political consequence. Second, the Court will not be gridlocked. In fact, an eight-member Supreme Court functioned just fine, and it was during a time when they had larger workloads. As David Bernstein, a professor at George Mason University School of Law wrote in the Post, Justice Robert Jackson took a yearlong absence to serve as chief prosecutor for the Nuremberg Trials for Nazi war criminals in 1945. Justice Felix Frankfurter wanted Jackson to take the position, adding that his time overseas would not be “sacrificing a single interest of importance.” The eight-member panel continued their work, and the country, along with our legal system, did not collapse (via WaPo):

If the court could manage with eight justices in 1945-1946, when it had a much more onerous workload than it has today, it can manage for a year or so now. There may be good arguments that the Senate should confirm an Obama nominee this year, but the notion I see circulating that it would somehow be unprecedented and dysfunctional to temporarily have only eight justices on the court isn’t one of them.

Yet, the Republicans are not squeaky clean in this matter of confirming judicial nominations either. When Democrats were in the minority during the Bush administration, they too were holding up circuit court nominations to the point where the GOP were actually considering doing what Reid did in 2013, dropping an atomic bomb on the filibuster. The Gang of 14 Compromise averted this maneuver. Yet, as Steven T. Dennis wrote in Bloomberg, this led to Democrats feeling the heat from their liberal base, which spawned the 2007 hold the line against Bush Supreme Court nominees saber rattling. Nevertheless, Sen. Orrin Hatch (R-UT) took to the floor in 2008, warning the chamber that they were failing to follow through with their “duty” in the confirming judicial nominations. The late Sen. Arlen Specter (R-PA), who would switch party affiliation in 2010, also tried to forge a compromise for judicial nominees in the twilight of a presidency, though it was never etched in stone:


There’s no shortage… of Republicans who flogged Democrats for slow-walking Bush’s judicial nominations and who now back a nearly yearlong Supreme Court blockade.

Hatch, the Republicans’ elder statesman on judicial picks, went to the floor in April 2008 to call for floor votes, citing history going back to the Civil War of the Senate confirming judges even in the final year of a presidential term.

“We are failing to do our duty,” Hatch said. “The majority has already virtually shut down the judicial confirmation process,” he lamented. “The Senate has not always operated this way. The majority is simply refusing to do what the American people sent us here to do because, I guess, simply, they can. That may be the reason, but it is certainly no excuse.”


In 2008, Republican Senator Arlen Specter of Pennsylvania, noting the steady deterioration in confirming judges at the end of a term of a president of the other party, offered a plan that would have applied to exactly this situation: a guarantee that judicial nominations, including Supreme Court picks, would at least get a hearing and a vote in the Judiciary Committee, and, if the panel approved the nomination, an up-or-down vote on the floor.

While the plan would have only applied to future presidents, no Democrat signed on and it didn’t go anywhere.


Back in 2008, McConnell warned Democrats that their obstruction of nominees could come back to haunt them.

“I would hope our Democratic colleagues resist the desire by some to drag us into the judicial confirmation brinkmanship and establish a precedent they will regret,” McConnell said.

Now, McConnell’s the one who may be establishing the precedent.


Katie wrote yesterday that the Senate GOP might be buckling for the impending fight. Dennis added that Sens. Mark Kirk (R-IL), Thom Tillis (R-NC), and Susan Collins (R-ME) have lent soft support at confirming an Obama nominee. Sen. Chuck Grassley (R-IA), chair of the Senate Judiciary Committee, was open to holding at least a hearing when the matter comes crashing into Capitol Hill. We’ll have to wait and see. Over at SCOTUSblog, they feel current Attorney General Loretta Lynch is the ‘likely’ nominee, as she’s been thoroughly vetted and could energize black and women voters in a critical presidential year. At the same time, GOP turnout could increase by one to two percent with this fight; a feat that Democrats might have trouble matching, given the disparities in voter enthusiasm taken so far this year.

So, have both parties been on opposite sides of the fence on this issue?–yes. Is this politics as usual? Yes. Does that mean Republicans have to acquiesce and confirm a nominee because Obama is the president and he has the authority to nominate a replacement? No. The Court has functioned fine with eight jurists in the past, and depending on the nominee–the party should fight like hell against it, especially if it’s someone who will definitely be problematic on Second Amendment rights and the legality of certain policies that some consider to be departmental/executive overreach (i.e. Clean Power Plan, DAPA, DACA etc.).

This is a huge gamble. The Democrats could win back the Senate and keep the White House, in which you know a die-hard lefty will be nominated to the Court. The GOP could cave, especially if it’s a centrist nominee, and roll the dice on this jurist regarding the issues mentioned above. Or the GOP could hold the line, win the White House, and maintain control of the Senate (another tough task) to secure a hypothetical nominee, who is an acceptable successor to Scalia. Yes, we want another originalist on the court because how dare we find someone who believes in the rule of law and the constraints in which the Constitution lays out quite clearly in some instances.


Oh, as for Lynch, the experts are projecting that she would be rejected on a party-line vote, and there is no chance Obama can push through someone as liberal at Sotomayor. What’s left is Obama picks a centrist, though that’s a bittersweet option since that won’t swing the Court to his liking. Both sides are heading for quite the game of political wits–and it’s not entirely insane to suggest that the Republicans are ready for it.

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