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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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  • JakeTidmore
    March 2, 2016 at 5:19 p.m.

    Packie proves once again that, at heart, he is a maker of balloon animals. He takes various colored balloons, blows them up with his hot air, and then twists them into semi-recognizable shapes.
    Great entertainment for kiddies. Not so for adults.

  • Dontsufferfools
    March 2, 2016 at 9:17 p.m.

    Be interesting to see that if Trump gets the nomination and then looks dead in the polls late in the summer, if Senate Republicans will suggest Obama nominate a moderate court candidate, thinking that it will be a better option for them than having Hillary nominate more liberal candidate. To follow up on birddog's excellent comments, the Constitution only says there has to be a supreme court. It doesn't say there has to be 9 justices. The number could be set at one. And if we can go a year without a justice, then we can go four too, I would think.

  • Packman
    March 2, 2016 at 10:03 p.m.

    Hey Whodo - Go back and read. I specifically said it was wrong not to have Obama offer a nominee and the Senate then consider. My point was to illustrate the hypocrisy of the double standard by those on the left. The editorials here are simply wrong.
    .
    Hey Jake - When all you have to offer is childish ad hominem attacks, you indicate a losing argument. Point, game, set, match, I win, again.

  • dearlo
    March 2, 2016 at 11:23 p.m.

    9 is the law of the land. Don't we ALL HAVE to follow the law or is it just most people? Or do the few not have to abide? No more of these games and lies, people are tired of it.

  • WhododueDiligence
    March 3, 2016 at 9:22 a.m.

    Packman, your accusation of hypocrisy is based on two false assumptions--that your opponents believe Biden's 1992 opinion (which was cherry-picked while ignoring other portions of his speech) was correct and, going even farther down that road, that your opponents believe Biden's opinion somehow becomes a Biden Rule.
    This line of thinking is also a straw man argument in which you misrepresent what your opponents believe and then attack that dubious and flimsy construct.

  • WhododueDiligence
    March 3, 2016 at 9:43 a.m.

    Packman, other than the accusations, you and I agree on this issue. Your initial comment about the proper thing for Obama and the Senate to do is spot-on correct.

  • Packman
    March 3, 2016 at 10:39 a.m.

    Hey Whodo - I made no assumption that Biden's opinion was correct. I only pointed out what the guy said. The "Biden Rule" is nothing more than a clever phrase to illustrate the prima facie double standard on behalf of the left. As I said, you could just as easily call it the Shumer Rule or the Obama Rule. And again, it's not a straw man argument because the only thing represented was/is the literal meaning of Biden's words. It's that literal meaning that was "attacked", not any construct thereof. If you get a chance you should also see what Obama said while filibustering Alito. The double standard is strong with that one.

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