Voices on the left were furious when John McCain suggested that Republicans in the Senate would block any nominees by Hillary Clinton if she becomes President. He walked back that particular talking point very quickly because he’s John McCain.
According to The New American:
To no one’s surprise, Senator John McCain (R-Ariz) quickly backtracked on a bold statement a few days ago, when he said, “I promise you that we will, we will be united against any Supreme Court nominee that Hillary Clinton — if she were president — would put up. This is why we need a majority.” […]
But before pleasantly surprised constitutional conservatives could even raise their hand to pat McCain on the back, he quickly changed his tune, speaking through a spokesperson, Rachael Dean. She “clarified” McCain’s earlier remarks by saying that McCain “believes you can only judge people by their record,” pointing to Clinton’s “clear record of supporting liberal judicial nominees.”
Now, we’re hearing a little bit of the same from Ted Cruz.
Before anyone starts searching their copy of the Constitution or checking Wikipedia for precedents, I’ll save you the trouble. Nine is not a magic number. It’s been the number for a century and a half, but there’s nothing that declares it needs to be the number. Moreover, there’s nothing that can compel the senate to confirm a nominee or even hold confirmation hearings. The powers laid out dictate that a Supreme Court justice can only be appointed by a President and can only be confirmed by the Senate. It does not dictate that the President must appoint, nor does it dictate that the Senate must confirm.
Here’s the real point, though. Eight is plenty. In fact, it may just be perfect. For the Supreme Court to take action, there needs to be a clear mandate. That’s an opinion, but it’s one that should make sense to any Constitutional conservative. With nine (or any odd number of) justices, actions for or against a ruling are essentially mandated automatically. That’s not how it should be. With eight, particularly if the justices are split between “conservative” and “liberal” ideologies, a true mandate would require that at least one justice changes sides.
What progressives will say is that keeping a split judicial branch of government impedes progress. The clear error in this thinking is in assuming that the Supreme Court has anything to do with progress. They don’t. That’s for the other two branches. The Supreme Court is there to prevent unconstitutional progress which, in our day and age, seems to be the majority of ideas proposed.
If we keep it at eight, it’s not the better or worse case that wins. Decisions won’t be based upon political leanings. The court can operate in a way that is much more pure. If a case is clearly won or lost, the Supreme Court will act because at least one justice should be willing to switch sides. That’s the burden that I believe is necessary for them to act. When it’s based upon a majority split along ideological lines, we get the debacles we’ve seen in the past few decades where the Supreme Court’s actions yielded failures on both sides of the political spectrum.
Keep it at eight. Not just now. Always. If the Supreme Court must act, it will be because the case was clear, not just because one side was a little better than the other or one based upon political lines.