Why It's Time To Stick With Eight Supreme Court Justices

After the GOP's prevention of a hearing on nominee Merrick Garland, the reputation of the court relies upon maintaining its eight-seat bench.
02/14/2017 01:59 pm ET Updated Feb 15, 2017
<strong><em>Any Trump appointee other than Merrick Garland will further undermine public confidence in the Supreme Court.</em
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Any Trump appointee other than Merrick Garland will further undermine public confidence in the Supreme Court.

Judge Merrick Garland waited over 300 days after being named to U.S. Supreme Court by President Obama. He was not given a vote for his nomination by the U.S. Senate. He was not given a hearing. He was not given a chance. Despite being qualified and earning bipartisan support, he was never seriously considered.

It was wrong and without precedent in American history.

Now President Trump has nominated Judge Neil McGill Gorsuch from the U.S. Court of Appeals for the Tenth Circuit. He’s qualified and has previously earned bipartisan support from the Senate. By all accounts, he’s a good Judge. But it doesn’t matter.

Judge Gorsuch should not be given a vote or even serious consideration for confirmation to the Court.

Every action has an equal and opposite reaction. Those who enforced a blockade on Judge Garland cannot in good faith insist or expect Gorsuch’s appointment to proceed swiftly. Democrats, Independents, and free-thinking Republicans should not forget what happened to Judge Garland. Moreover, we should not forget what is at stake in confirming a justice to a fiercely divided court.

Any Trump appointee other than Merrick Garland will further undermine public confidence in the Supreme Court. What is at stake in this appointment is faith in our system. If lost, it will be difficult  ―  if not impossible ― to regain.

There is another solution besides resurrecting the nomination of Merrick Garland: President Trump and the Senate could maintain the status quo.

The confirmation of Judge Gorsuch would raise a specter of further politicization of the court not seen since Bush v. Gore. Even if Judge Gorsuch were to analyze and decide cases with an independent mind, any decision supporting the administration will be seen as illegitimate and tainted. Aside from appearances, the balance of the court itself would continue to tip rightward as a perverse result of the political gamesmanship that prevented Garland’s appointment. There is another solution besides resurrecting the nomination of Merrick Garland: President Trump and the Senate could maintain the status quo.

Neither the Constitution nor Federal law requires nine justice on the Court. Nothing from the historical writings of the Founding Fathers suggests that nine justices was seen as necessary. The Judiciary Act of 1789 set the number of justices at six. There is little persuasive precedent that nine justices are required for the institution to function well.

The court is currently split 4–4 along ideological lines. Preserving this split will require the court to issue either nearly unanimous rulings or show deference to lower courts. The prospect of narrow 5–4 decisions is eliminated and the push to compromise is incentivized.

The current administration has already demonstrated an unnerving disregard for ethics rules, the law, and the Constitution. Fewer than 30 days into the Trump administration, the 9th Circuit U.S. Court of Appeals had issued a ruling blocking enforcement of President Trump’s ex­ec­ut­ive or­der bar­ring trav­el­ers to the United States from sev­en majority Muslim na­tions. The Emoluments Clause of the Constitution and its application to President Trump’s business interests abroad raises serious questions about whether he can constitutionally serve. Finally, the President’s comments denigrating the judiciary, which have been called “demoralizing” and “disheartening” by none other than Judge Gorsuch, show a contempt for the court system. Never before in American history have we had a president who openly intimidates judges to such a degree. He should not be allowed to appoint a justice to the highest court in the land given the lack of respect for the institution.

If there is one institution that cannot and should not be put in jeopardy under this new administration, it is our Supreme Court. Those who love liberty should use every tool at their disposal to prevent any Trump appointment other than Garland. Those who care about the integrity of the institution should fight to preserve and protect it. The risk is too great.

 

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