When Antonin Scalia died in February, Senate Republicans quickly proclaimed that despite what the Constitution says, Barack Obama had no right to appoint Scalia’s successor. Instead, they invented a new principle, which is that presidents — or Democratic ones anyway — only get to appoint Supreme Court justices for the first three years of their four year terms. After that, we must wait until the next president takes office, so he or she can make the appointment.
At the time, I made a prediction: If Hillary Clinton gets elected, Republicans will change their minds and decide that the Supreme Court is actually working just fine with eight justices, and there’s no need to rush ahead and fill that vacancy, at least not until 2021 or 2025, whenever we have our next Republican president.
Now at least one senator is suggesting that this just might be just the ticket, and he’s getting backup from conservative writers, as David Weigel reports:
Speaking to reporters after a campaign rally for a Republican U.S. Senate candidate here, Sen. Ted Cruz (R-Tex.) said that there was “precedent” for a Supreme Court with fewer than nine justices — appearing to suggest that the blockade on nominee Merrick Garland could last past the election.
“You know, I think there will be plenty of time for debate on that issue,” said Cruz, when he was asked whether a Republican-controlled Senate should hold votes on a President Hillary Clinton’s nominees. “There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice 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’s remarks put him at odds with several colleagues on the Senate Judiciary Committee, including its chairman, Sen. Charles E. Grassley (R-Iowa). “If that new president happens to be Hillary, we can’t just simply stonewall,” Grassley told reporters last week…
Last week, in National Review, Minneapolis law professor Michael Stokes Paulsen argued that a new Congress should pass a law shrinking the Supreme Court from nine to six seats. “A smaller court means diminished judicial activism,” Paulsen wrote. “As the Court’s size shrinks, activist majorities become mathematically harder to put together. Four votes out of seven is harder to achieve than five of nine.”
On Wednesday, in an essay in the Federalist, Cato Institute legal scholar Ilya Shapiro went further, suggesting that Republicans refuse to appoint any high court nominees put forward by Clinton.
This is just one more example of a phenomenon some of us have been talking about for some time, which is that Republicans simply play politics by a different set of rules. Or more properly, they have come to a fine understanding of the difference between rules and norms, the latter being the informal ways of doing things that give shape and order to politics. Many of these norms are so longstanding and accepted that they have the status of formal rules — until one party decides to break them.
You can date Republicans’ realization that norms are just waiting to be broken to any number of points, but my preference is for the “Brooks Brothers riot,” an incident that took place during the chaotic struggle over Florida’s votes following the 2000 election. At the urging of prominent Republicans, including at least one member of Congress, GOP congressional aides and other Republican activists went to the building where Miami-Dade election officials were recounting ballots and staged a violent protest that included lots of pushing, shoving, punching, kicking, and pounding on doors, all in an attempt to follow that congressman’s instruction to “shut it down.”
The whole thing was staged by, guess who, Trump adviser Roger Stone, the Zelig of Republican dirty tricks. And it worked: the recount in Miami-Dade was suspended, and George W. Bush ended up becoming president, with the final word delivered by five conservatives on the Supreme Court issuing a ruling so shamelessly partisan that in the ruling itself they proclaimed that it could never be used as precedent for any subsequent case; its purpose was to put Bush in the White House and nothing more.
Again and again in the time since, Republicans have run up against some norm that restricts them from doing what they’d like, and said to themselves, “Well, why don’t we just violate this norm? There’s no law against it.” There’s no rule or law preventing you from filibustering literally every bill more consequential than the renaming of a post office, even if that wasn’t how filibusters were understood before. There’s no rule or law preventing you from having your commissioners on the Federal Election Commission just decide that election laws don’t have to be enforced. There’s no rule or law preventing you from threatening to default on America’s debt, even if up until then everyone considered that to be insane. There’s no law or rule against writing to a foreign government with whom the administration is conducting delicate negotiations over matters of the highest national security questions, and saying, just so you know, we’ll tear up any agreement you make with the Obama administration (although in that case, there actually may be a law against it).
The larger point is that at the same time they were becoming more ideologically radical, Republicans embraced an unprecedented procedural radicalism, in which they’re perfectly happy to take a sledgehammer to any and all of the norms that enable the government to function. And it accelerated under Barack Obama, fed by the common conservative belief that he was never a legitimate president in the first place, so why should they treat him like one?
So mark my words: if Clinton is elected, before you know it the idea that the Supreme Court can do fine with eight members will gain more and more adherents on the right until it is the standard Republican position (until there’s a Republican president, of course). If another justice should die or retire while Clinton is president, they’ll say, “What’s wrong with seven?”
But wait, you say. Haven’t Republicans, including Mitch McConnell and Chuck Grassley, gone on record saying that they’ll allow the next president’s Supreme Court nominee to get a hearing no matter who that president is? Yes, they have. And if you think they’ll have any compunction about doing a 180-degree turn on that, then you aren’t familiar with them or individuals or the party to which they belong. (Grassley in particular, despite his goofy-grandpa image, is as crude and dishonest a partisan as you’ll find.) In all of these kinds of cases, Republicans calculated that the ultimate political effect of violating these norms would be negligible. Sure, they’d have to endure some strongly-worded editorials, but most voters would be only dimly aware of the whole story, and those who had a better understanding of what it was about would be locked into their partisan preferences. That calculation has turned out to be largely correct.
All this depends, of course, on Republicans retaining control of the Senate. If Democrats take control, they’ll begin to move through the nomination to fill Scalia’s seat, either with Merrick Garland or someone else Clinton appoints. At that point, Republicans will mount a filibuster, despite the fact that filibustering Supreme Court nominations is, though not unprecedented, extremely rare (the last time it happened was 48 years ago). But the good news is that Democrats have made it clear that if Republicans bust through that particular norm, they’ll change the Senate’s rules so that Supreme Court nominations can’t be filibustered. Two can play this game.