Eight is Enough For Now: Unpacking the Supreme Court

By some accounts, a faction of Senate Democrats is considering confirming President Trump’s first Supreme Court nominee without a fight in exchange for some promise of being permitted to keep their filibuster power for the next one – avoiding the so-called “nuclear option.”

Such a deal would be a colossal mistake and Senate Democratic Leader Chuck Schumer should push forcefully to block confirmation.

Senate Republicans spent nearly all of 2016 arguing, notably without any precedent in the annals of the U.S. Senate, that they simply could not vote during an election year to confirm President Barack Obama’s nominee, Merrick Garland, to the vacant seat on the U.S. Supreme Court.

Toward the end of the election, in the early days of November, when victory seemed all but assured for Hillary Clinton – an even greater mortal enemy of Republican hardliners than President Obama – the Republicans’ narrative evolved yet again.

Republicans never give up. And Democrats?

North Carolina Senator Richard Burr, a Republican who was about to be re-elected after a tough fight, was recorded telling his volunteers:

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.”

Imagine what a fundamental difference a few days make. As soon as Donald Trump had won the presidential election and Republicans defended their Senate majority, the Republican tune changed completely.

Two sets of rules for Republicans

Now, they intoned full of conviction, the vacant Supreme Court seat, suddenly theirs to fill, it needed to be filled right away.

Donald Trump soon announced conservative hardline Appeals Court Judge Neil Gorsuch. The nominee, like the late Antonin Scalia, is credited with a strong legal mind – although he is widely regarded, hard though that is to imagine, as more conservative on both business and social issues than the man whose seat he would be filling.

It also didn’t come as a surprise that Republican Senators who had refused even to meet with Obama’s nominee Merrick Garland for nearly a year, were now calling for his instantaneous confirmation, without so much as a hearing.

The status quo — A workable new world

Since Scalia’s death in February 2016, the Supreme Court has made do with just eight justices. And yet, there has been no legal standstill.

Tied decisions simply revert back to the decision of the specific, geographically-based Appeals Court the case came up from and do not apply across the full country.

In general, for those interested in maintaining recent protections of civil rights and human rights, as well as voting rights, abortion rights, labor rights, workplace protections and environmental safety, it has been better to have four-four decisions, rather than sweeping conservative decisions.

Had Scalia lived until the end of 2016, many key decisions would have gone very badly on those issues.

Not just a line in the sand

The operative question in U.S. politics now is how Democrats are going to handle the issue of Neil Gorsuch. Are they going to act like typical Democrats – and let the Republicans have their way?

Or have they finally developed the political spine to act like the Republicans did – and surely would have, in case Hillary Clinton had been elected President.

They would have erected an impenetrable wall to continue their blockade of any new nominee selected by a Democratic President.

A great deal is at stake

Were Judge Gorsuch to be confirmed to replace him, at the still very tender age (for a Supreme Court Justice) of 49, which may give him as much as four decades of service on the Court, and with additional vacancies from the liberal side likely, things will look very dark indeed.

As things stand, the much heralded American cause of common sense, as well as any expectation for a fair, rational and equitable 21st century governance in the United States would disappear even more than it has already done with the very temperamental Mr. Trump in the White House.

Just turn the tables

The Democrats’ task isn’t too difficult. Republican Senators already made the case last year that there is no urgency to filling a vacancy, even if it effectively reduces the size of the court by one member for five years. That number could drop further if any justices retire or die in the coming four years.

Clinging to mechanistic thinking and very un-Republican notions of “fairness,” many Americans, including many Democrats, seem concerned that it would be dangerous to leave the seat vacant any longer.

But while Republican Senators may have been cynically crafting a new argument for their political convenience, which they have now walked back, are principled blockade politics only a prerogative of Republicans?

The legal frame

Let’s think this through more closely. As it stands, Republicans were not really incorrect.

First, the United States Supreme Court, the highest constitutional court in the land, surprisingly does not have a set number of justices specified in the U.S. constitution. It is set by law and therefore subject to revision by Congress.

The number has been nine since 1869, but it varied over the years. Indeed, in 1866, just a few years earlier in the tense aftermath of the U.S. Civil War, Congressional Republicans had lowered the seats from ten to seven.

They did so specifically to prevent President Andrew Johnson, a Democrat, from filling vacancies as they opened. Remarkably, one seat was already vacant when Republicans made the reduction in the court.

This sort of court “un-packing” does, therefore, have some precedent.

Second, in the real world, the court functions adequately with eight members (now and previously) and it would function fine with seven, as it has done before.

What’s at stake for U.S. society and the world

The Gorsuch discussion is not occurring in some political vacuum, as many Republicans now pretend. It is about far more than giving a well-qualified man the job for which he is well qualified, as they are likely to argue in artful innocence mode.

Viewed in the relevant context, the issue agenda the Supreme Court gets to rule on, the importance of confirmation now or delay for good cannot be underrated.

This isn’t just true for life in the United States itself, but also globally. After all, if the Supreme Court tilts in a very conservative direction, given the role of the United States in world affairs, this will have a very negative impact on people all around the world.

The list of issues thus at stake includes:

• The environment (climate, drinking water and air quality)
• Voting rights and district fairness
• Campaign finance and clean elections
• Racial justice, criminal justice and policing
• Labor rights & workplace protections
• Excessive executive authority
• Civil liberties
• Non-discrimination
• Abortion access

Many of these issues came before the Supreme Court in 2016 alone. Virtually all of them came up many times in the past eight years.

Regressive, throwback outcomes on these cases will cause tremendous damage to people, slant the electoral playing field heavily toward Republicans alone and generally further foster a general sense of unrepresented popular anger.

The stakes are too high to allow the Republicans the theft of a Democratic appointment – in typical Obama fashion, Merrick Garland was no “leftie,” but a very pro-business, moderate nominee many of them had once praised, no less! – go without a political price to be paid.

Just block him

Especially in the Irrational Age of Trump that we now live in, the Democrats must do WHATEVER they can to stand in the way of an unbreakable hardline conservative majority for decades to come.

Democratic Senators are within historical norms – and within the mandate of what should reasonably be expected of them to protect the country – to block this abusive seizure by extreme conservatives of an additional seat on the Supreme Court.

Simply put, and probably for the next four years, eight is enough.

And, finally, what if another Supreme Court Justice dies or retires…

All the more reason to draw a line in the sand on Gorsuch and prevent the confirmation of long-serving Trump-appointed justices who will take the country and the world backward for the next half-century.