And Then There Were Eight … Seven … Six … Five … Supreme Court Justices


While I do not often agree with his political views, I basically respect Senator John McCain.  Yes, he is a republican, a conservative, but his views are more moderate than those of his fellow republicans these days and, I believe, he is basically a good human being.  His rankings by the non-partisan National Journal for 2005-2006 rate him as follows – economic policy: 59 percent conservative and 41 percent liberal; social policy: 54 percent conservative and 38 percent liberal; and foreign policy: 56 percent conservative and 43 percent liberal. Following his 2008 presidential election loss, McCain began adopting more orthodox conservative views. By 2013, some aspects of the older McCain had returned.

Overall, his ideology has seemed to be closer to moderate than the uber-conservative ideologies we see from the Trump camp and others, although I still disagree with him on many issues.

trump-ridicules-mccainMost of us with consciences were horrified last year when Donald Trump singled out McCain for ridicule over his war record, saying that he was not a hero because he was captured.  Senator McCain served in Vietnam and was captured by the North Vietnamese in 1967 when his plane was shot down.  Already badly wounded, the soldiers proceeded to crush his shoulder, then refused medical treatment.  He was tortured and kept imprisoned for five-and-a-half years.  He certainly was a war hero, and Donald Trump actually gave McCain a boost in popularity when he attempted to denigrate him.

Of late, since Donald Trump threw his hat into the ring of fire, I have liked Senator McCain more often than not.  Which brings us to today.  A brick has been placed on each side of the balance scale, and I find myself conflicted.

mccainFirst, I was proud of Senator McCain for withdrawing his support for Trump on October 8th, the day after news broke of a 2005 recording of Trump talking about women in crude and vulgar ways, and even seeming to trivialize sexually groping them. “When Mr. Trump attacks women and demeans the women in our nation and in our society, that is a point where I just have to part company. It’s not pleasant for me to renounce the nominee of my party; he won the nomination fair and square. But I have daughters. I have friends. I have so many wonderful people on my staff. They cannot be degraded and demeaned in that fashion.”

But then came this …

“John McCain: Republicans will block anyone Clinton names to the Supreme Court” – Think Progress

“McCain Suggests GOP Would Oppose Clinton Supreme Court Picks” – The New York Times

“John McCain points to indefinite Supreme Court blockade” – MSNBC

scotus-2The vacancy left when Justice Antonin Scalia died unexpectedly in February should have been filled long ago.  Why wasn’t it?  Because Republican Mitch McConnell called on the Senate to refuse to even consider any nominee, saying that it should be filled by the next president after the November election.  This means that the vacancy will extend, in all likelihood, past the one-year mark, since the incoming president will not be inaugurated until January, and it will take time for candidates to be screened, nominated, and considered by Congress.

The Supreme Court currently stands with eight Justices.  However, in the next year or two, three are likely to retire:  Stephen Breyer is seventy-eight, Anthony Kennedy is eighty, and Ruth Bader Ginsburg is eighty-three.  That would leave a Supreme Court with only five Justices, if the Senate refuses to confirm any nominees.  Those five would be: Chief Justice John G. Roberts, Jr. (nominated by George W. Bush), Clarence Thomas (George H. W. Bush), Samuel Alito (George W. Bush), Sonia Sotomayor (Barack Obama), and Elena Kagan (Obama).

The Constitution places the power to determine the number of Justices in the hands of Congress. The first Judiciary Act, passed in 1789, set the number of Justices at six, one Chief Justice and five Associates. Over the years Congress has passed various acts to change this number, fluctuating from a low of five to a high of ten in 1863. Then in order to prevent President Andrew Johnson, who was soon to be impeached, from naming any new Supreme Court justices, Congress passed the Judicial Circuits Act of 1866. This Act reduced the number from 10 to seven. The decrease was to take effect as the seats became vacant. However, only two seats were freed up by 1869, so there were eight justices. Congress added one seat back in, and decided that there should be nine justices. The Judiciary Act of 1869 officially set the number at nine, and it has not changed since.  Is Congress willing to play a game again next year with the number of Supreme Court appointments, just to keep President Clinton from being able to appoint a single Justice?

There is a little known clause that requires a quorum of six for the Court do to its work. There is no magic to the number ‘nine’, though it has served us well for 147 years now. But it is, I think, inexcusable for Congress to refuse to even hold confirmation hearings, as they did this year in the case of President Obama’s nominee, Merrick Garland, simply based on their dislike of the president.  One hopes that Congress is comprised of adults, not junior high school students, but more and more I question that premise.

Senator McCain is up for re-election and, as I predicted earlier this year, he is doing well, some 10 points ahead of his opponent.  Until his statement about the Supreme Court, I would have wished him well in the election, but now I am less enthused for his success.  I still believe the Senate will hold a democratic majority at the end of the day on November 8th, and this situation makes the down ballot even more imperative.  I would not like to see the Supreme Court reduced to five Justices for the next four years!

President Obama is a Constitutional Law scholar.  As some have posited before me, would it not be poetic justice for Hillary Clinton to nominate Barack Obama to the Supreme Court, and a majority Democratic Senate confirm him?  John McCain, Mitch McConnell, and their cronies would have only themselves to blame.  President Obama is only 55 years old, so he could serve on the Supreme Court for, say, 20-25 years!

8 thoughts on “And Then There Were Eight … Seven … Six … Five … Supreme Court Justices

  1. Dear Jill,

    That our President Obama would become a supreme court justice, would indeed be poetic justice and he would do an outstanding job. If that happened, he would have served in the three parts of managing our country, the executive branch, the legislative branch and the judicial branch.

    Hugs, Gronda


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