Let’s have a little stroll back to the mists of early November 2016:
With just days until the election, some Senate Republicans are suggesting that when it comes to the Supreme Court, eight is enough. Eight justices, that is.
For the first time, some Senate Republicans are saying that if Hillary Clinton is elected, the GOP should prevent anyone she nominates from being confirmed to fill the current court vacancy, or any future vacancy.
The pronouncements are such a break with history and tradition that they often provoke the response, “Really?” Some see such statements as little more than an attempt to motivate the Republican base to get out and vote. Others, however, see the trend as a further deterioration of American institutions of government.
Sen. John McCain was the first. Appearing on a conservative radio talk show, he said that if Clinton is elected, “I promise you that we will be united against any Supreme Court nominee [that] she would put up.” His press secretary quickly tried to backpedal, but McCain himself has not.
Since then, Sens. Ted Cruz and Richard Burr have upped the ante, while other Republican senators have dodged and weaved on the question. The Senate’s No. 2 Republican, Texas Sen. John Cornyn, said he didn’t want to “speculate” on the question.
But Burr, in a tough re-election battle in North Carolina, said in a tape-recorded meeting with Republican volunteers last weekend, “If Hillary 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.”
As for Cruz, he suggested there is nothing sacrosanct about having nine justices. For support, he pointed to a statement made by Justice Stephen Breyer during an interview in which Breyer noted that the court has historically functioned with as few as five or six justices.
To state the obvious, the idea that Republicans have any kind of commitment to a 9-person Court that would transcend their immediate partisan advantage is absolutely laughable. We don’t even have to speculate — their conduct in 2015 answers the question. There is no material difference between using the advise and consent power to manipulate the size of the courts and using Article III powers to manipulate the size of courts.
Anyway, right after the John Lewis Voting Rights Act (and a relief bill if it’s 2021,) the next Dem trifecta should pass the Cruz-McCain-McConnell Judicial Reform Act. Don’t look so disappointed.