Nine Justices is not an Ultimatum

American-Flag1Is the Senate correct to block anyone President Obama appoints to replace Antonin Scalia?  Socrates would begin by answering the question with a question: How many justices are required to sit on the nation’s highest court bench?  I always thought nine justices was a Constitutional edict, but that is not the case.  According to the History Channel’s website, at a link called:, the page is dedicated to 7 Things You Might Not Know about the US Supreme Court, this is #2:

There haven’t always been nine justices on the court.

The U.S. Constitution established the Supreme Court but left it to Congress to decide how many justices should make up the court. The Judiciary Act of 1789 set the number at six: a chief justice and five associate justices. In 1807, Congress increased the number of justices to seven; in 1837, the number was bumped up to nine; and in 1863, it rose to 10. In 1866, Congress passed the Judicial Circuits Act, which shrank the number of justices back down to seven and prevented President Andrew Johnson from appointing anyone new to the court. Three years later, in 1869, Congress raised the number of justices to nine, where it has stood ever since. In 1937, in an effort to create a court more friendly to his New Deal programs, President Franklin Roosevelt attempted to convince Congress to pass legislation that would allow a new justice to be added to the court—for a total of up to 15 members—for every justice over 70 who opted not to retire. Congress didn’t go for FDR’s plan.

There have been as few as five and as many as ten in our nation’s history it is up to Congress how many justice should sit on the bench and it has been nine since 1866.  Interesting!  Not only does Congress have the right to block an appointment from confirming, but they can also pass legislation to reduce the number of justices to eight permanently!  In theory less than eight but the quid pro quo that the eight men and women occupying the bench now are serving lifetime terms, none of them can be removed from the bench without just grounds for impeachment so barring unforeseen circumstances, eight would be the minimum.  The Republican controlled Senate (the house that approves judicial appointments) would probably not jump to that extreme for two reasons; (1) their majority is not large enough to override a presidential veto and assuming the next president is a Republican conservative, they would rather have this new president appoint a conservative judge for a 5-4 conservative majority.

President Obama DOES have a Constitutional right to appoint someone; in fact, to choose to simply burn the clock out would be dereliction of duty on his part.  Although there is no penalty for doing this, or at least none anyone would implement during the ten-month lame duck period, it would not look good for public opinion on the legacy of the first African American president, which will be decided in 2037, twenty years after he is out of office.  Likewise, the Senate has a Constitutional right not to confirm any of his appointments.  To deny for the sake of denying seems sophomoric and childish, but this is a very unique situation.  There was no politics to force a justice into retirement of impeach a justice.  For Antonin Scalia, St. Peter called when he did and no politician has a say in that.  In my opinion, if Obama is willing to consider a moderate or moderate conservative appointee, Senate Majority Leader Mitch McConnell should reconsider so all three branches of government can function like a well-oiled machine both during the lame-duck administration and into the era of the new president whoever he or she may be.  But I can see their point about five out of nine liberals.

It is hard for me to make the case being a conservative, but I do believe when it comes to the Supreme Court and assuming it will remain a bench of nine far into the future, five conservatives is better for the nation than five liberals regardless how the other two branches align with respect to party and ideology.  Let us not forget that the judicial branch is the most static of the three branches.  It is not the function of the judicial branch to participate in the lawmaking process but to enforce the law as it is in the status quo, possibly interpret a law not clearly written, and void any law in conflict with the Constitution.  The ideal Supreme Court justice is someone status quo minded; objective and value neutral.  If a Supreme Court justice wants to change the law, he has to do what everyone else does, write to his or her congressman.  To be the ideal model of objectivity and value-neutrality would require an automaton; as it turns out, nobody built of flesh completely fits that description.  If we cannot have nine (or whatever number) value-neutral status quo-minded people on the bench, it is the lesser of the evils to have a conservative majority.  A liberal majority on the bench is a threat to the Constitution; and that is no fault of any liberal justice or potential justice.  As I have posted on several occasions, the political continuum is measured relative to the status quo and all three branches of government have to operate with the understanding that the Constitution is the ultimate arbiter and the preservation of the Constitutional status quo is better handled by people whose dynamics do not head in the direction of changing the Constitution.

I am sure the Senate will not dismiss a conservative appointed by President Obama although I think it is unlikely he would not appoint a moderate or liberal from the Sotomayor-Kagan school.  I cannot come to a conclusion as to whether allowing the Supreme Court to function with eight justices, four liberal and four conservative with high probability of tie votes.  But if the Republican-controlled Senate opts for the strategy of delaying until a new president is sworn in, such tactics are more than Constitutionally viable since there is no Constitutional mandate for exactly nine judges and since Congress has the power to change the size of the bench through the legislative process; with either the president signing it into law or a two-thirds majority in both houses to override a possible veto.  Be prepared for an eight-member Supreme Court for the next year or so.


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