Four years ago, Republicans in the US Senate refused to consider President Obama's nominee to fill the Supreme Court seat held by Antonin Scalia who had died in February that year. In March, Obama nominated Merrick Garland to fill the vacancy, but the Republican majority on the Senate Judiciary Committee refused to conduct a hearing on the nomination, saying the appointment ought to be held after a new President took office in January 2017.
Senate majority leader Mitch McConnell, when asked if not filling a Supreme Court seat in an election year ought to become a policy called the idea "absurd," saying that "neither side, had the shoe been on the other foot, would have filled the vacant seat."
That was then, this is now, and the shoe is indeed on the other foot. With less than two months to go before an election, President Donald Trump will announce his choice Saturday to replace Ruth Bater Ginsberg on the Court. Ginsberg died last Friday.
Among those most outspoken in 2016 was South Carolina Senator Lindsey Graham, who went so far as to say, in refusing to consider Garland, that he would never consider a replacement on the Court in an election year, adding, "you can use my words against me." Senator Ted Cruz, then seeking the GOP nomination that later went to Trump, also said he'd never consider a replacement on the Court in an election year.
This isn't the first time a Supreme Court Justice has been nominated in an election year. It happened in 1895, and more recently, in 1988 a Democratic-led Senate confirmed Republican Ronald Reagan's nomination of Anthony Kennedy and in 1991, a Senate held 57-43 by Democrats nevertheless confirmed Justice Clarence Thomas.
Democrats are crying, "foul," but there is no doubt that while two GOP senators, Lisa Murkowski and Susan Collins, said they wouldn't vote to replace Ginsberg, McConnell has the votes necessary to confirm Trump's nominee, and on Wednesday, Murkowski backed down, saying she'll likely vote to confirm Trump's nominee.
Scalia was a conservative, Ginsberg a liberal, and with Supreme Court appointments lasting for lifetime unless a Justice resigns, Trump's appointee will no doubt change the makeup--and therefore, most likely, the decisions--of the Court for years to come.
With no hope of stopping the appointment, some Democrats are suggesting that if they take the majority in the Senate, they may add more seats to the court.
There are currently--as has been the case since 1869, nine seats on the Supreme Court. Before that, Congress routinely changed the number of Justices to achieve its own partisan goals, resulting in as few as five Supreme Court Justices required by law under John Adams to as many as 10 under Abraham Lincoln.
There is no stipulation as to the number of Justices in the Constitution.
It’s Congress, not the Constitution, that decides the size of the Supreme Court, which it did for the first time under the Judiciary Act of 1789. When George Washington signed the Act into law, he set the number of Supreme Court justices at six.
John Adams got that number lowered to five, in part to keep Thomas Jefferson from getting to name a Justice. Adams was a Federalist; Jefferson a Democratic-Republican. Jefferson and his new Congress quickly repealed the Judiciary Act of 1801, bringing the number of Justices back to six.
By the beginning of the Civil War in 1861, the number of Supreme Court Justices had increased to nine, but Lincoln, upset over the Supreme Court’s 1857 Dredd Scott decision, wanted to be certain of an anti-slavery majority on the Court, so he got Congress to add a 10th in 1863.
To limit Andrew Johnson’s power, Congress cut the number of Supreme Court Justices back to seven, assuring that Johnson wouldn’t have the opportunity to fill a vacant seat. When Ulysses Grant beat Johnson in the election of 1868, Congress increased the number back to nine the next year, and so it has stayed.
The Democrats may talk about it, but they most likely won't try to increase the number of Justices and pack the court--because that would set a precedent that Republicans might follow if they take control of Congress. Besides, it has already been tried--and it didn't work.
In the 1930s, the Supreme Court issued a series of rulings that undercut some of Franklin D. Roosevelt’s New Deal legislation. He then had Congressional allies introduce a bill that would have asked Justices over 70 years old to resign--and if they refused, Roosevelt would be able to name yet another Justice. Since six of them were over 70, that would have given Roosevelt a chance to name six new Justices.
The proposal was turned down in the Senate by a vote of 70-20.
With lifetime appointments, it’s not unusual for Supreme Court Justices to serve well into their senior years. Ruth Bader Ginsberg was a Justice for 27 years when she died at age 87 and Antonin Scalia was 79 when he died.
While Ginsberg was the oldest of the Justices, Justice Stephen Breyer, who has been on the Court for 26 years, is now 82. Clarence Thomas, who has been a Justice for almost 29 years, is 72. Samuel Alito is 70. Chief Justice John Roberts is 65. Sonia Sotomayor is 66. Elena Kagan is 60. The youngest Justices are Neil Gorsuch, 53, and Brett Kavanaugh, 55. Justice Oliver Wendell Holmes, Jr., who served from 1902 to 1932, retired at age 90, making him the oldest person ever to sit on the Court.
The Constitution spells out age, citizenship and residency requirements for becoming President or a member of Congress but mentions no rules for joining the nation’s highest court. Six Justices have been foreign born; the most recent, Felix Frankfurter, who served on the court from 1939 to 1962. He was born in Austria.
Supreme Court Justices are appointed for life, but many have resigned, and like the President, they can be impeached.
This will be President Trump's third appointment to the Court. George Washington made the most--11, while Franklin Roosevelt made the second most--9.
The President said Monday he has narrowed his list of possible nominees to five women, and two have emerged as the frontrunners: Judges Amy Coney Barrett and Barbara Lagoa. Barrett is from Vice President Mike Pence's home state, Indiana. Lagoa's parents fled Cuba, and nominating her would likely help Trump's re-election campaign in Florida.