The Supreme Court

CNN reported that, on Monday, October 17, 2016 in a radio interview on 1210 WPHT Philadelphia, Senator John McCain said:

“I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up. I promise you. This is where we need the majority and Pat Toomey is probably as articulate and effective on the floor of the Senate as anyone I have encountered.”

So far, Donald Trump seems to be unaware of a major rule of politics … “If you find yourself in a hole, stop digging.” Unless he stops going down the rabbit hole of personal attacks and sticks to the issues that gained him the nomination (jobs, the border, etc.), Hillary Clinton will be our next president.

Senate Majority Leader Mitch McConnell said the Senate should not confirm a replacement for Supreme Court Justice Antonin Scalia until after the 2016 election. That meant an eight-justice Supreme Court for at least a year. OK, we can live with that … for now. An even number of members means that there will be ties. No decision is a decision; it’s just not very satisfying.

The Constitution of the United States does not set a specific size for the Supreme Court. That decision is left to Congress. The Court has had as few as 6 and as many as 10 members. The Judiciary Act of 1789 set the number at six. In 1807, Congress increased the number of justices to seven. In 1837, the number was bumped up to nine. In 1863, it rose to 10. In 1866, Congress shrank the number of justices back down to seven. In 1869, Congress raised the number of justices to nine, where it has stood ever since.

The Senate is not the Congress. The Senate confirms or rejects Presidential appointments to the Supreme Court. The Senate does not get to unilaterally change the number of members … certainly not though wanton inaction. The Senate must work with the House of Representatives to pass a law changing the number of Supreme Court justices. The Republican Party has controlled both houses of Congress for almost 2 years. If they wanted to change the number of members on the Supreme Court, why didn’t they do so before Antonin Scalia’s death? (For that matter, why haven’t they done much else?) A Presidential veto would have put the onus on Barack Obama and, by association, the Democratic Party.

Four (maybe eight) years of non-action on replacing Judge Scalia is unacceptable. If most Republicans agree with John McCain’s statement, they’ll prove that their party is more interested in politics than governance. In that case, if Hillary Clinton does win the election, the Democrats need to take the Senate … and the Republican Party’s rank and file need to take a good long look at their leaders.

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