Nothing in the Constitution or in any law makes what Senate Republicans did in 2016 by willfully refusing to act on an Obama Supreme Court nomination and what they are currently doing in acting on Trump’s nomination of an extreme and avowed social conservative to the Court in the midst of a presidential election is either illegal or unconstitutional.
There are no binding precedents in past Congressional or presidential behavior in these matters, regardless of what is said about Abraham Lincoln in 1864 and regardless of what bizarre justifications Republicans concoct from the fact that in some similar past situations the Oval Office and the Senate were held by the same party and in some they were not.
The temptation to resort to shortsighted solutions to get justices that agree with you on the Supreme Court is one to which both Republicans and Democrats, both liberals and conservatives, have succumbed.
For example, Democrats in 2013 and Republicans in 2017 unwisely engineered the abolition of the filibuster as regards judicial nominations, thus eventually allowing Supreme Court justices to be confirmed by simple majority vote. See also the above-referenced 2016 Republican refusal.
Rightly dismayed at the prospect of a 6-3 conservative majority on the Court, some progressives are now suggesting increasing the number of justices and/or imposing term limits on their tenure.
I share their dismay, but I think trying to engineer an end-run around a conservative (or liberal) majority of a particular Court by messing with its structure or its nature is unwise and, like that 2013 abolition of the filibuster, may backfire on proponents.
Four additional seats would be needed to convert the anticipated 6-3 conservative majority into a 7-6 liberal majority possible and even if they could be created (an uncertain prospect), there’s no guarantee that they would remain safely liberal.
Increases in the number of justices historically occurred when more were needed to preside over an increasing number of circuit courts (no longer a duty of Supreme Court justices). Only twice has Congress or a president sought to change the court’s size for ideological reasons.
To deny President Andrew Johnson an opportunity to fill a vacancy, Congress passed legislation in 1866 reducing the then-10 member Court to seven by attrition. After Johnson left office, the law was repealed and the size of the Court was set at the Court’s requested nine.
Wrongly claiming that the Court was overworked and backlogged, but in reality frustrated because the Court found some of his New Deal legislation unconstitutional, Democratic President Franklin Roosevelt in 1937 proposed legislation giving him the power to increase the Court to 15 justices. A Democratic Congress wisely rejected his proposal.
Imposing term limits on Supreme Court justices would require amending the Constitution. And that amendment could not legally apply to justices sitting at the time it went into effect. It would apply only to those confirmed after that point.
As a practical matter, neither the creation of additional seats nor ratification of a term limits amendment could be accomplished quickly enough to affect the resolution of questions soon to come before the Court.
As noted above, shortsighted solutions to issues of Supreme Court ideology tend to backfire, boomerang and, as the saying goes, bite their users in the backside.
Given the crudeness, illogic and unpopularity of Republican and Trumpist solutions, we can expect — perhaps as early as Nov. 3 — that the president and his Congressional allies will find it painful to sit down.