They could do that, it’s true. The size of the Court is set by statute, not by the Constitution. If Congress wants a seven-member Court or a five-member Court, that’s up to them.
The politics would be awfully dicey, though. A new president is sworn in and moves to fill a vacancy which the GOP spent a year claiming should be filled by the next president, not Barack Obama. So the voters make their choice — and then, in the name of blocking a Democratic Court majority, the GOP decides the vacancy shouldn’t be filled all. We’ll see how the polling goes on that.
Speaking to reporters after a campaign rally for a Republican U.S. Senate candidate here, Sen. Ted Cruz (R-Tex.) said that there was “precedent” for a Supreme Court with fewer than nine justices — appearing to suggest that the blockade on nominee Merrick Garland could last past the election.
“You know, I think there will be plenty of time for debate on that issue,” said Cruz, when he was asked whether a Republican-controlled Senate should hold votes on a President Hillary Clinton’s nominees. “There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”
The point is probably moot twice over. One: Obviously, this would only stand a chance of happening if Republicans hold their majority in the Senate, which is unlikely right now. If they tried to jam up confirmations as a minority, Schumer would nuke the filibuster and Hillary would have carte blanche on her nominees. (Harry Reid is encouraging him to nuke it, in fact.) Two: Even if the GOP holds onto the majority, it’ll likely be 51/49 at best. All it would take is two Republicans to say that the Court should be kept at its current size of nine justices and that Clinton deserves an up-or-down vote on her nominees and Democrats would be able to claim a majority in favor of their position. The rest of the caucus would be left having to decide whether to serially filibuster Clinton’s nominees, assuming there are 41 Republicans willing to do that, which is doubtful. Probably there would be 25 or so GOP senators on either side of the issue, populists in favor of filibustering and establishmentarians against it, guaranteeing a nasty early intraparty fight over how ferociously Clinton should be resisted. The filibuster would fail, the populists would claim they’d been sold out by the gutless leadership — you know how this goes. It’d be like old times again.
I don’t see how it would work strategically either. If Senate Republicans decide that the Court should shrink and Scalia’s seat be left permanently vacant, one of the remaining Republican justices could step down or die the next day. In an instant, you’d have a 4-3 Democratic majority and a precedent Senate Democrats could cite to obstruct the next Republican president if he/she takes office with a Dem majority in Congress and a vacancy opens up. Imagine there’s a 4-3 Dem advantage in 2021, with a Republican in the White House and Schumer still in charge of the Senate, and Clarence Thomas suddenly decides to retire. Democrats would now have a 4-2 advantage on the Court. Why on earth would Schumer allow the president to make the Court more Republican by appointing a successor to Thomas when he could just freeze the appointment process and let the Court shrink like Cruz is suggesting here?
It’s unfair to Cruz, though, to think he’d throw his full weight behind this proposal. This is, almost certainly, just GOTV chatter designed to goose Republican voters to turn out next month downballot. John McCain, of all people, made the same point for the same reason last week. If you’re a conservative who’s worried about Clinton filling the Supreme Court, well, here’s Cruz giving you a glimmer of hope that that can still be averted if you make sure Republicans are still in charge of the Senate in 2017. Note that he doesn’t even commit to shrinking the Court, he just says there’ll be a debate on it. The only way this idea might gain real traction within the caucus, risking a schism, is if conservative media starts thumping about it — which, come to think of it, is already happening. If talk radio picks it up after the election as the new litmus test for congressional Republicans in the age of Clinton, all bets are off. Hey — at least it’ll give us something to talk about besides, er, Paul Nehlen running for Speaker against Paul Ryan.
Or, maybe none of it will matter because Trump will win and he’ll be appointing the justices. Right, Michael Moore? (Profanity warning.)