The Doomed Republican Court-Stripping Plan

No one believes the Court is untouched by politics.

John McCain and Donald Trump have had their highly publicized differences, but the senator’s promise last week to block any nominee for the Supreme Court presented by a President Hillary Clinton reflects precisely the same type of petty sore loser mentality and dangerous constitutional intransigence coming from the top of the ticket.

Yesterday, Ted Cruz, another senator who’s had his differences with Mr. Trump, obliquely endorsed prolonged Supreme Court obstructionism. With one vacancy outstanding and others expected over the next four years, Mr. McCain and like-minded Republican senators would indefinitely hamstring the Supreme Court to influence case outcomes. History teaches that such a Republican court-stripping plan politicizes the Court beyond what the public will accept.

No one believes the Court is untouched by politics. The Constitution itself leaves the process of selecting and confirming Supreme Court justices to the political branches, as Article II, section 2 authorizes the president to appoint justices with the “Advice and Consent of the Senate.” Naturally, when politicians are designated to select judges, consideration of the political and policy consequences of a nomination will creep in. Over the years, presidents and senators have drawn the line in different places – from placing aptitude, intellect and qualifications at the forefront, to using litmus tests on particular politically charged legal issues – when considering an individual for the Court.

But the Republican tactic of refusing even to consider a Supreme Court nominee presented by a Democratic president – a move spearheaded by Senator Mitch McConnell for the past eight months and threatened by Mr. McCain for the next four years – represents an unprecedented abdication of constitutional duty. The move started as a temporary stall by Republicans optimistic they’d retake the White House next year. It has devolved into a threat of prolonged impairment of the Court by gloomy Republicans hopeless of their presidential candidate’s chances. In either case, the naked political tactic of refusing to consider a Supreme Court nominee advanced by a president from the opposing party violates the spirit, if not the letter, of the Constitution, and the public should reject it.

The framers of the Constitution included nothing in the text about how presidents and senators are to exercise their authority over judicial selections. There are no rules, other than common sense, past practice, and general fairness. Likewise, the Constitution says nothing about the size of the Supreme Court. The number of justices is set by Congress. Legislators fuddled around with it for a while, but since 1869, that number has been nine. There’s nothing magical about the number nine – though it does have the advantage of being an odd number, which tends to prevent ties, unlike the eight- or ten-member courts Congress legislated in the mid-1800s – but that’s where the law has settled, and the only rightful way to change it is through the difficult process of passing legislation.

The size of the Court and the process of selecting its justices are left, like so much in our constitutional framework, to the art of the possible. The Founders left the ultimate judgment about how our politicians exercise their authority on the Supreme Court to us, We The People.

Over the years, we have witnessed nasty Senate confirmation fights, and endured some prolonged Supreme Court vacancies. But intentionally keeping the Supreme Court at less than full strength for years in an effort to influence legal outcomes is pure cynicism, and there’s a limit to the political chicanery the public will accept when it comes to the Court. In fact, the public had no problem seeing and rejecting it when nearly eighty years ago another high-profile politician sought to shape high court case outcomes by manipulating the number of justices.

In February 1937, shortly after being sworn in for his second term, President Franklin Delano Roosevelt announced a court-reform bill that would have allowed Supreme Court membership to swell to 15 justices. The battle over the Court was so important to Mr. Roosevelt he made it the subject of the first fireside chat of his second term. Critics labeled Roosevelt’s gambit a “court packing plan,” designed to dilute the power of the block of five Supreme Court justices who’d been striking down New Deal legislation and state laws aimed at keeping workers’ wages up and hours down. Unable to remove the life-tenured justices, despite his resounding electoral victory – where he captured 531 of the 539 available electoral college votes – the pragmatic president sought to subtract from their power by adding to their numbers.

Though Mr. Roosevelt and his New Deal had swept into office with more than sixty percent of the popular vote months before, according to 18 national polls conducted by Gallop between February 3 and June 10, 1937, the public viewed the threat from Mr. Roosevelt’s attack on the Court as more dangerous than the Court’s attack on the New Deal. Popular support for the court-packing plan averaged under forty percent. Thus, the public showed its respect for the institution of the Court, apart from the policy outcomes of its cases. The public reaffirmed that just as the office of the president is more important than any one person who may hold it, the institution of the Supreme Court is more important than any decision it might hand down.

Ultimately, the plan never came to a vote in Congress, and Justice Owen Roberts’s decision to switch his vote to approve New Deal legislation in a cases announced in spring 1937 eroded the impetus to pack the Court, but polls show We The People had decided Mr. Roosevelt had gone too far – he’d packed more politics into the Court than it could hold.

Mr. McCain, in revealing the Republican court-stripping plan, has done the same. His promise to ignore his constitutional duty if Mrs. Clinton wins – diminishing the Court, in number, authority, and prestige in the process – goes way past the limit. In apparent recognition of this, Mr. McCain’s spokesperson attempted to walk back Mr. McCain’s promise of obstruction. However, as others have described, if Mr. McCain, a senator for nearly 30 years, slipped, it was most likely an accidental revelation of hidden plans. We, the people, should be asking Mr. McCain and other Republican senatorial candidates whether they will pledge to do their job to advise and consent (when appropriate) to nominees presented by Hillary Clinton should she become president. Those who say they won’t, those who tell us they’ll leave us in suspense until after the election, those who say, I’ll fulfill my constitutional duty only if Donald Trump wins, are no less disrespectful of our Constitution than the presidential candidate who says he’ll accept the outcome of the election only if he wins.

While the text of the Constitution doesn’t spell out how many justices make up the Supreme Court or how to select them, it does provide the means to deal with politicians who would subvert the Constitution’s spirit: Vote for senators who pledge to preserve our democratic institutions and the rule of law; vote for senators who pledge to do their job.