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There the president goes again, warning that if his nomination to the Supreme Court isn't considered by the Senate, the whole constitutional process will be disrupted, politics will be introduced into appointments to the high court and its decisions, and the sky will fall.

What, leave a seat on the court vacant? Never mind that the greatest of this country's chief justices, John Marshall, rendered his formative decisions (like Marbury v. Madison) as little more than a circuit rider. The court hasn't always had nine justices, and many's the time it simply delayed a decision while waiting for a seat to be filled.

The court marked time while Lyndon Johnson tried to get his man Abe Fortas promoted to chief justice. A seat also stayed empty for a year until Richard Nixon got Harry Blackmun appointed and confirmed. During the Reagan administration, the name of his nominee, Robert Bork, became a common term (as in He Was Borked) used when the nominees proved entirely too forthright about the legal philosophy that would guide their decisions. The game of musical chairs that followed proved almost comic until His (indecisive) Honor Anthony Kennedy was finally nominated and confirmed months later.

So let's cut the theatrics and acknowledge historical reality. To quote a couple of scholars, Josh Blackman of the South Texas College of Law and Ilya Shapiro of the Cato Institute, both of whom have filed briefs in pending Supreme Court cases, "today's court is more than capable of doing its work with eight justices."

Editorial on 03/02/2016

Print Headline: Horrors! A vacancy on the court!

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Comments

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  • Nodmcm
    March 2, 2016 at 6:38 a.m.

    It might be best to let Hillary choose the next justice. Obama got his two picks, so now it will be her turn. Or maybe Trump will choose, but will Trump choose David Duke perhaps? Can you imagine the nine supreme court justices in their group photo, with one justice wearing a tall, pointed white hood with two eyeholes cut out?

  • WGT
    March 2, 2016 at 6:40 a.m.

    Thinking doesn't seem to be your strong suit.

  • 23cal
    March 2, 2016 at 6:53 a.m.

    The editor wants to pretend the question is whether or not the court can do its work------"today's court is more than capable of doing its work with eight justices." However, that isn't the question at all. The court can do its work with 3,5,8,9,12, or 15 justices. Pick a number.
    *

    The question is that after the president does his duty and nominates a justice, will the Republican senators do their duty to give advise and consent on that nominee. Everything else, such as what the editor trots out here, is smoke and mirrors. Attempting to justify that dereliction of constitutional duty as the editor does here is pathetic.
    *
    About "So let's cut the theatrics and acknowledge historical reality." Let me fix that for you. "So let's cut the t̶h̶e̶a̶t̶r̶i̶c̶s̶ BS and acknowledge historical reality." The Senate has NEVER.....never, ever, in its entire existence...refused to meet with or to review a SCOTUS nominee who hasn't withdrawn himself from consideration. In other words, what the Republicans are assuring us they will do is unprecedented.
    *
    When you promote political expediency over constitutional duty, your priorities are screwed up. The priorities of the editor of the ADG are clearly screwed up.

  • BirdDogsRock
    March 2, 2016 at 8:39 a.m.

    As 23 points out, if we don't need 9 justices because 8 is good enough, then by that logic do the court and the country and the constitution and the people really need 8? Won't 7 be good enough? How about 6? Or 5? 4? 3? 2? 1? 0? Does the editor think the US even really needs a Supreme Court at all?
    ~
    This matter isn't about a number. It's about dereliction of duty by the Senate Republicans, as 23 also points out.
    ~
    In reality, it won't be a year delay in filling the vacant seat. For the new president will take some time to nominate her own candidate, and for the Senate to give advice and consent; could be another 3-12 months. But according to the editor, time and numbers don't matter.
    ~
    But on the other hand, the editor seems to be effectively calling for President Hillary to pick the next justice, as if to suggest her pick would be better and preferable to Obama's pick. Unless the Republican Senate decides it wants to wait until the NEXT presidential election to consider refilling the seat.
    ~
    If, as the editor states, there's nothing wrong with waiting a year to refill a SCOTUS seat, then why not wait 5 years? Or 9 years? Or 13 years? Or however long it takes for the US to elect a Republican president in combination with a Republican senate? For that seems to be the only point the editor is making... a pretty thinly veiled and shallow point.

  • 23cal
    March 2, 2016 at 8:43 a.m.

    BirdDogsRock.......spot on.

  • GoBigRed
    March 2, 2016 at 9:03 a.m.

    23Cal, that response looks worthy of being in the print addition of this paper.

  • 3WorldState1
    March 2, 2016 at 9:03 a.m.

    These little editorial cheap shots that are always rolled out seem so short sighted, trivial and never actually frame the real argument. It makes me, and I'm sure others, have less faith in this newspaper - that they are a neutral arbitrator of the news.
    23 and Bird have it right. I hope this "editor" answers these questions in their next sound bite.
    Maybe they could write an article about why Flint, MI is no big deal because when you divide the number of people in Flint into the number of actual Americans - it's really no big deal.

  • WhododueDiligence
    March 2, 2016 at 9:17 a.m.

    The examples in this editorial demonstrate only that presidents have sometimes been slow to appoint Supreme Court candidates who have a realistic chance of Senate approval. In all of those cases, the Senate acted in accordance with its Constitutional duties to hold hearings and vote to approve or reject the nominations. In sharp contrast, Mitch McConnell and the Republican-controlled Senate is (so far) refusing to act in accordance with this Constitutional duty to approve or reject ANY nominated candidate.
    *
    That is unprecedented. To comply with their Constitutional obligations, all the Senate has to do is vote to approve or reject an appointed candidate. As throughout American history, when the Senate votes to reject a candidate, they are merely rejecting a candidate. That has happened many times. When the Senate refuses to act, however, they are rejecting their own Constitutional duty. That has never happened ... until now.

  • WhododueDiligence
    March 2, 2016 at 9:40 a.m.

    Robert Bork borked himself in Nixon's (and Bork's) infamous Saturday Night Massacre firing of Watergate investigator Archibald Cox, who had requested Nixon's tapes of Oval Office Watergate conversations. When Reagan appointed Bork to the Supreme Court, Bork didn't have nearly enough Senate votes to approve. Six Republican Senators even voted against Bork. So this editorial is borking up a wrong tree.
    *
    Also, contrary to this editorial, there was no "game of musical chairs that followed."
    There were only two Reagan appointments that followed. The first one withdrew from consideration when his previous marijuana use was publicized, and the second appointment--Anthony Kennedy--was approved by Senate vote.

  • SoonerHawg
    March 2, 2016 at 9:47 a.m.

    I guess reality simply evades everyone. No one has actually DONE anything. No nomination has been made and only threats to not act on a forthcoming nominee. So, until an action is actually taken - slow down, get your panties out of a wad and see what happens. Oh...and...uhm....well, never mind what was said about a David Duke nomination...

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