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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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  • WhododueDiligence
    March 2, 2016 at 9:57 a.m.

    "... today's court is more than capable of doing its work with eight justices."
    That is not a consensus opinion. Whenever there's a 4-4 tie, the Supreme Court is not really deciding the case because the decision of the lower court then stands. But those lower court decisions then stand without establishing a precedent or final resolution because only the Supreme Court has that Constitutional authority.
    There are good reasons for the Judicial Act of 1869, which specified nine Supre Court justices, and good reasons that Congress hasn't tampered with their prescribed number of nine justices since then, over nearly a century and a half.

  • PopMom
    March 2, 2016 at 10:32 a.m.

    I've never heard of the South Texas College of Law. 23Cal nails it. Of course, it is the Senate's duty to consider the nominee. Bork should have been rejected due to the infamous firing of Archibald Cox. Harriet Meirs was a decent choice though; she should not have been pulled. However, two wrongs do not make a right. The President should offer his nominee, and the Senate must consider that person.

  • Packman
    March 2, 2016 at 11:11 a.m.

    So, 23cal and the rest of the clan of libs, was Joe Biden wrong when he said a lame duck POTUS shouldn't proffer a nominee to SCOTUS? It's lol funny that conservatives are sticking the "Biden Rule" up libs' a$$e$.
    The proper thing is for Obama to offer a nominee and the Senate should advise and consent (or not) as is their duty. 8 is only enough until 9 can be duly settled upon. Joe Biden was wrong when he said 8 is enough and this editorial is wrong when it says 8 is enough.

  • GoBigRed
    March 2, 2016 at 12:16 p.m.

    Pack - The Republicans love to pick and choose what they want to hear. So, let us look at the rest of the "Biden Rule"

    Biden went on to say : "I believe that so long as the public continues to split its confidence between the branches, compromise is the responsible course both for the White House and for the Senate," Biden also said at the time. "If the President consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support as did Justices Kennedy and Souter. But if he does not, as is the President's right, then I will oppose his future nominees as is my right."

    I believe that the president met yesterday with Republicans to try and iron out a solution. His proposals were again rejected.

  • WhododueDiligence
    March 2, 2016 at 12:23 p.m.

    Packman, in the complete (non cherry-picked) C-SPAN video of that June 1992 Biden speech, Biden said that if the president (Bush senior) appointed a moderate candidate for the Supreme Court, that candidate would have Biden's support in the Senate vote.
    So POOF, there goes the so-called lame duck "Biden Rule" right back at you.
    Not only is there no Biden Rule, there was also no Supreme Court vacancy when Biden made that speech about hypothetical circumstances. The Supreme Court was then at full nine-member capacity, and no vacancy was expected.
    And there are no lame ducks in our Constitution.

  • kdc72701
    March 2, 2016 at 1:13 p.m.

    23 cal In fact this editorialist is looking at an INVERSE view of reality. I have no heard O saying the process would be upended if the seat remains empty. It is upended when the GOP decides they will reject ANY nominee because they do not like the President. That is not how the game is played. The President nominates and the Senate approves or NOT. But they do not say they will NOT approve before we even have a nominee. That is ridiculous.

  • nwar
    March 2, 2016 at 2:23 p.m.

    Once again, the ADG lets personal animosity get in the way of logic and studied opinion. This editorial is nothing but a study in cheap,hollow snark. Why don't you guys just give up and re-name the paper the FOX Republican Gazette?

  • Packman
    March 2, 2016 at 3:23 p.m.

    Hey GoBigRed - Did you even read what you provided in rebuttal? In full context, Biden said lame duck POTUS should not offer up a nominee but IF (it's right there in the quote you provided) so, he believed "yada, yada, yada, yada."
    And Obama only met with Republicans to say he met with Republicans. You nor I have any idea what he attempted to "iron out".
    Hey Whodo - BFD if no vacancy existed at the time. Biden said what he said and it was clear and not taken out of context. Who you going to believe, Whodo, your lying ears and eyes or DNC talking points?
    This could also be called the "Shumer Rule" as well since Chucky has essentially made the same statement or the "Obama Rule" due to Obama's filibustering of Samuel Alito.

  • 3WorldState1
    March 2, 2016 at 4:01 p.m.

    Who gives a rats a&% what one senator said. Over the course of our country, many senators have said just that, but, then a justice is nominated and the Senate approves or disapproves. Which is what they are supposed to do.
    Once again, IF the Senate does not even have a committee hearing or does not vote, it will be unprecedented. Funny how the first black president gets elected and there are tons of "unprecedented" occurrences. Hmmmm... Though I'm sure it's just a coincidence.
    I guess we see what the GOP really thinks about the constitution.
    If I were the GOP I would rather BO pick one than Hillary.

  • WhododueDiligence
    March 2, 2016 at 5:04 p.m.

    Packman, previously you asked the question "Was Biden wrong...?"
    Of course he was wrong. There's nothing about a lame duck in the Constitution, and Biden's expressed opinion about a hypothetical situation clearly does not make Biden's opinion anything which could rationally be called a "Biden Rule".
    That wasn't the first time Biden was wrong. But now you seem to be taking the position that Biden was right! How strange ... a Republican supports Joe Biden for being right!
    Congratulations, Packman, THAT is a first.