Vengeful Democrats, bemoaning that Republicans “stole” the Supreme Court seat left vacant by the death of Antonin Scalia, are promising to settle the score. Outraged at Republican inaction on President Obama’s nomination of Judge Merrick Garland, they’re ready to filibuster and, if possible, defeat President Trump’s nominee, Judge Neil Gorsuch.
But the retribution they’re proposing is itself a way of stealing a Supreme Court seat – this time from the American people. Because settling the Garland score by rejecting all of Trump’s nominees means that for purely political reasons the nation won’t have the full complement of nine justices doing the important work of clarifying what our laws mean.
Democrats who advocate rejecting Gorsuch as payback for Garland’s treatment have not been clear whether it’s a one-time retaliation, or if they plan to reject all Republican nominees until a Democrat can fill the seat – perhaps with Garland himself.
If this is supposed to be a one-time redress, that’s awfully short-sighted for Democrats, since nearly all sober left-of-center voices acknowledge Trump is unlikely to nominate – and the Senate unlikely to confirm – a justice with better qualifications, temperament, and stability than Gorsuch. (I felt the same way when I supported confirming Garland, since I “knew” Trump wouldn’t win and I couldn’t imagine Hillary Clinton appointing anyone better.) It would be frankly stupid for liberals to roll the dice with the whims of a mercurial president when the bird in the hand is already their best-case scenario.
But more likely, Democrats are hoping to keep the seat open until it’s filled by a different president. And not just any president, but a Democrat. After all, Garland’s treatment wasn’t Trump’s fault, since he wasn’t in the Senate or even a party leader at the time of the nomination. Democrats could be waiting a long time for the chance to nominate a justice, since in American history, the White House has sometimes been held by one party for as many as 20 years.
So Democrats are apparently comfortable with eight justices for years and maybe decades until they get their way. That would be a more radical change to our judicial system than refusing to hold hearings on a nominee while a presidential election is underway.
Now, an even number of justices is not unprecedented in American history. The Constitution specifies no specific Court size, and during the early years of the Republic and briefly after the Civil War there were six and then ten members of the Court. At various times (including last year) vacancies kept the number divisible by two as well. But those courts had even numbers of justices for structural, not political reasons.
There actually are strong, conservative arguments for an even number of justices, since ties limit the Court’s ability to impose radical change on the country. Unlike recent weighty and permanent 5-4 decisions on campaign finance, gay marriage, gun rights, religious freedom, voting rights, and the 2000 presidential election, 4-4 votes uphold the lower court’s ruling, but without setting a precedent.
So maybe America should have an even number of justices – but only after a thorough national conversation, followed by a democratic vote. No politicians should be allowed to mangle our cherished institutions in a fit of partisan pique.