WASHINGTON — The Supreme Court has existed with its full complement of nine justices for close to 150 years, no matter who occupied the White House. Now some Republican lawmakers suggest they would be fine with just eight for four years more rather than have Hillary Clinton fill the vacancy.
The court has operated with eight justices for the past eight months as Republicans controlling the Senate have blocked confirmation hearings for President Barack Obama’s nominee Merrick Garland. Majority Leader Mitch McConnell, R-Ky., and his GOP colleagues have insisted that American voters should have a say, choosing the next president in Tuesday’s election. The 45th president — either Democrat Hillary Clinton or Republican Donald Trump — would fill the current vacancy created when Justice Antonin Scalia died in February.
But several Republicans have said if the voters elect Clinton, they’ll block her nominees, effectively abandoning their advice and consent role for her entire term.
“If Hillary Clinton 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,” North Carolina Sen. Richard Burr said in an audio recording of his meeting with GOP volunteers on Saturday. CNN obtained a copy of the audio.
GOP Sens. John McCain of Arizona and Ted Cruz of Texas have also suggested blocking any Clinton nominees. Sen. Rand Paul, R-Ky., said in a debate Monday night that he “can’t imagine” voting for any Clinton nominee though he stopped short of vowing to block a pick from a Democratic president.
McConnell says simply the next president will make the nomination to fill the current vacancy.
The size of the court is set by federal law and has changed over the years, but has been nine justices since 1869.
When vacancies arise, they usually are filled within months, if not weeks. But there have twice been stretches of more than two years where the court was one justice short. Another six vacancies lasted more than a year. The most recent was in 1969 and 1970, when Justice Abe Fortas resigned and the Senate rejected two of President Richard Nixon’s nominees before confirming Justice Harry Blackmun.
Here’s a look at the key figures and what they’re saying:
McConnell, R-Ky., hasn’t flinched since announcing just hours after Scalia’s death that the Senate would delay the process. Democrats predicted then that political pressure would force McConnell to eventually cave on that promise, but that didn’t happen and the GOP blockade has barely registered in this year’s elections.
McConnell may come under pressure from some Republicans to move on the nomination before the end of the year if Clinton wins, since Garland is considered by some to be a more moderate pick and Clinton could choose someone more liberal. Arizona Sen. Jeff Flake has suggested a vote in the post-election, lame-duck session. But McConnell has shown no signs of changing his mind and several Republicans are emphatic in saying no vote this year.
Like McConnell, the chairman of the Senate Judiciary Committee has held firm all year that the next president should choose the nominee. Grassley, R-Iowa, said last week that he would hold confirmation hearings on a nominee whoever wins the presidency. Asked about the court operating with eight justices, Grassley said, “Now that would be contrary to what I’ve said for seven months.”
If Clinton wins the presidency, she will have to decide whether she wants Garland as the nominee. Clinton could decide that she doesn’t want a messy Supreme Court nomination fight to define her first months in office and ask Obama to re-nominate Garland as soon as the new Congress is sworn in on Jan. 3. A Democratic Senate could try to confirm him.
If she decides she wants to make the nomination herself, Clinton would be under pressure from liberal groups to nominate someone to the left of Garland.
The balance of the Supreme Court has been one of Trump’s most potent messages in the election. The Republican has warned that if Clinton is elected, the Court will shift to the left. He’s already suggested 21 conservative state and federal judges whom he would consider nominating if he becomes president, a bid to ease concerns among GOP faithful about his candidacy.
One of his suggested justices is Utah Sen. Mike Lee, who called for Trump to step down after news broke of a 2005 recording of Trump making crude, predatory comments about groping women.
If Democrats win the Senate, the New York senator is expected to become majority leader. He could decide to hold a quick vote on Garland if Obama re-nominates him before leaving office.
If he becomes leader and Clinton nominates, Schumer will have to manage the confirmation process and decide what to do if Republicans have enough votes to block the nominee.
Outgoing Senate Democratic leader Harry Reid has suggested that the Senate may need to change the rules to ensure that a Supreme Court nominee only needs a simple majority vote rather than a filibuster-breaking 60. Reid engineered a similar change for nominees and lower court judges in 2013, dubbed the “nuclear option.”