Just hours after Justice Antonin Scalia’s death, Senate Majority Leader Mitch McConnell (R-KY) announced that he would confirm no one President Obama nominates to fill Scalia’s seat. “This vacancy should not be filled until we have a new President,” according to a statement McConnell released shortly after news of Scalia’s death became public.
Now, however, McConnell appears to be having second thoughts — not about blocking Obama’s nominee; he’s fully committed to that position — but about whether it is a good idea to allow the next president to fill the seat either:
MCCONNELL and CORNYN both say they won't even meet with a SCOTUS nominee. McConnell also wouldn't commit to up-or-down vote for next POTUS
— Manu Raju (@mkraju) February 23, 2016
There are many obvious reasons why Supreme Court seats should not be left open until Mitch McConnell personally gives his stamp of approval to whoever the American people elect as president. Even setting aside the ideological consequences of a “Mitch decides” standard, Justice Scalia himself warned that an empty seat “impairs the functioning of the Court” when the justices are trying to decide a case.
It’s worth noting, moreover, that three current justices, Justices Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer, are all quite elderly. More vacancies — possibly as many as three more — could open up before Mitch McConnell decides that he likes the person sitting in the White House. If too many vacancies open up, that could potentially shut down the Supreme Court entirely. Under federal law, “the Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum,” so if four seats become vacant there will no longer be enough justices to form the quorum necessary to decide cases.
Admittedly, there are strong arguments that a federal law that effectively deactivated the Supreme Court (by requiring six justices for the Court to do business if only five actually exist) violates the Constitution. The Constitution provides that “the judicial power of the United States, shall be vested in one Supreme Court,” which suggests that the existence of some body with the power to perform the high Court’s functions is mandatory.
Should the Court’s membership be reduced to five, however, that could trigger a novel kind of constitutional paradox. Can God create a rock so heavy that even He cannot lift it? Does a Supreme Court with only 5 members have the power to declare the 6 justice quorum requirement unconstitutional?