Despite a renewed kerfuffle over email usage, it remains likely that Democratic presidential nominee Hillary Clinton will be elected to the White House on Nov. 8.
Knowing this, Senate Republicans have begun to think out loud about the Supreme Court vacancy left by the recently deceased justice Antonin Scalia—a champion of constitutional originalism and social conservativism. Should Clinton indeed win next Tuesday, it will fall to her to name his replacement. She will, in all likelihood, appoint a liberal judge, bringing conservative lawmakers’ nightmare scenario to fruition: a Supreme Court that will, for the first time in decades, be run by a liberal majority, five to four; and a super-majority of six to three with the occasional crossover by the more moderate justice Anthony Kennedy.
In the United States, Supreme Court appointments are evaluated, approved or denied by the Senate. Republican senators, currently forming a majority in the 50-seat chamber, took advantage of this dynamic upon the unexpected death of justice Scalia in Feb. 2016 by refusing to old hearings or vote on president Obama’s appointment of US Court of Appeals for DC chief judge Merrick Garland—considered to be a relative centrist. Senate majority leader Mitch McConnell defended the decision, saying that the American people, by casting votes for the next president, would be exercising their rightful “voice” in the process.
Now, with Hillary Clinton on the probable cusp of election, it appears Republican senators are no longer very much concerned with voters or their voices. Arizona senator John McCain suggested in mid-October that the Senate could indefinitely block any of Clinton’s Supreme Court nominations. Though a spokesperson for McCain’s office later walked back the remark, North Carolina’s senator Richard Burr piled on last weekd. In a leaked recording obtained by The Raleigh News & Observer, in which the senator casually spoke of Hillary Clinton’s hypothetical assassination, Burr can be heard saying, “If Hillary becomes president, I’m going to do everything I can do to make sure that four years from now, we’re still going to have an opening on the Supreme Court.”
Texas senator Ted Cruz added his own thoughts to the fray by pointing to historical precedent for leaving the court with an extended vacancy. “There is certainly long historical precedent for a Supreme Court with fewer justices,” he said.
Unfortunately for Clinton, and anyone with an interest in tilting the ideological balance of the court leftward, Cruz is right—there is definite precedent for the court to have less than nine judges. When the Court was established in 1789, it consisted of six justices, one for each of the regional courts of appeals operating at the time. Seats were added as the territory of the United States expanded, leading to the creation of new federal courts farther afield.
Cruz cited for support recent remarks made by liberal justice Stephen Breyer to an MSNBC panel. Breyer admitted that the Court’s “mechanics work about the same” even in the absence of a ninth justice.
Breyer’s rather vague comments aside, blockading Republicans would not be constitutionally compelled to evaluate Clinton’s nominee, even if their motives were rather glaringly partisan. The Constitution says the Senate “shall advise” the president on Supreme Court appointments, but nowhere does it state a requirement to do so.
Blocking Clinton’s appointments for the entirety of her first term might ultimately be more damaging to sitting Republican senators, however—especially those in states with sizable Democratic and independent voter bases. In John McCain’s Arizona and Richard Burr’s North Carolina, for instance, nearly 70% of voters say that senators should evaluate the next president’s Court appointments on a case-by-case basis, according to Public Policy Polling. (More than half of Republican voters in those states say the same.) Simply put, McCain and Burr are at odds with the majority of their constituents on this issue, and that might put their reelection campaigns at risk.
Still, such obstructionism in the event of a Clinton presidency wouldn’t be entirely out of step with recent senatorial history. The last liberal justice to be considered by a Republican senate was Rufus W. Peckham on Dec. 3, 1895. If the senate remains Republican-dominated after Nov. 8, and Hillary Clinton takes the White House, the Court will be in territory not tread for more than a century. As with most issues sprouting from this election cycle, all bets are off.