Sen. Ted Cruz (R-TX), architect of the 2013 government shutdown, told reporters in Colorado on Wednesday that he may be prepared to shut down all confirmations to the Supreme Court of the United States.
As the Washington Post’s Dave Weigel reports, Cruz said that there is “certainly long historical precedent for a Supreme Court with fewer justices,” in response to a question about whether a Republican-controlled Senate should refuse to confirm anyone nominated by a President Hillary Clinton.
Cruz’s implicit threat echoes Sen. John McCain’s (R-AZ) statement earlier this month, when he told a radio host that Republicans “will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” McCain and several of his fellow Republican senators have since distanced themselves from that statement. Nevertheless, if Republicans do retain their majority in the Senate, it is difficult to see how Clinton will assemble the supermajority of senators that will likely be necessary to confirm anyone she nominates to the Court.
Litigants cannot reasonably be expected to follow the decisions of a rigged bench.
As ThinkProgress argued shortly after McCain made his statement, a threat to confirm no one to the Supreme Court is effectively a threat to destroy the Court itself. Unlike elected officials, who can claim a mandate from their own democratic legitimacy, an unelected judge’s “legitimacy flows from their obedience to a written text and the knowledge that they were selected in a fair and constitutional process.” If the Republican Party insists that it shall be the only party that gets to place new justices on the Supreme Court, that taints the aura of fairness that surrounds the Court. Litigants cannot reasonably be expected to follow the decisions of a rigged bench.
Cruz’s appeal to precedent, meanwhile, raises a dark historical specter. He is correct that there are many periods in American history when the Court had fewer than nine justices — most recently in 2005, when Chief Justice William Rehnquist died in office. All of the recent previous examples, however, are very brief. After Rehnquist died, President George W. Bush insisted that the Senate act quickly to fill this seat, arguing that “it is in the interest of the court and the country to have a chief justice on the bench on the first full day of the fall term.” The Senate acquiesced, confirming Chief Justice John Roberts shortly before the term began.
The Court did function with fewer than nine justices for much of the nation’s early history, but the justices of this era did a very different job than the one they do today. As it is today, the early American republic was carved into several judicial “circuits.” Unlike today, however, justices were each assigned one of these circuits and expected to travel to hear ordinary cases within them. Typically, new justices were appointed from the same circuit as their predecessor — so retiring justice from, say, the southeastern part of the nation would be replaced by another southeasterner — and each circuit had its own justice. For a while, there were fewer than nine circuits, and thus there were fewer than nine justices. At one point, the size of the Supreme Court grew as high as ten, after a tenth circuit was created to include the west coast.
The closest precedent for the kind of tactic Cruz and McCain suggested — refusing to confirm anyone named to the Supreme Court because of ideological disagreements with the president — arose under circumstances quite unlike the situation that will face Hillary Clinton if she becomes president. Andrew Johnson was an accidental president, selected as Republican President Abraham Lincoln’s running mate as much because of his disagreements with Lincoln as for the two men’s similarities. Johnson was a “War Democrat,” a member of the opposition party who remained loyal to the Union and supported the war. He was chosen to send a message of unity during a time of war, not because he shared Lincoln’s politics.
Though Johnson supported the Union, he spent much of his presidency attempting to overturn the result of the Civil War. Johnson vetoed a precursor to the Fourteenth Amendment, the transformative constitutional provision guaranteeing citizenship to freed slaves. He voted civil rights legislation and a bill establishing the Freedmen’s Bureau. He offered amnesty to many former Confederates and permitted them to elect white supremacist governments. After Congress passed the Fourteenth Amendment, President Johnson pressed Southern states to try to block it. He eventually became the first president to be impeached, largely due to his disagreements with Republicans committed to a more aggressive Reconstruction of the South.
The Judicial Circuits Act of 1866 was not originally intended to hobble Johnson specifically, but it was enacted to diminish the influence of people like Johnson on the Supreme Court. Under the old system of judicial circuits that existed prior to Lincoln’s presidency, five of the nine circuits were made up entirely of slave states — effectively enabling slaveowners to dominate the Supreme Court. Moreover, while the creation of the tenth circuit ostensibly gave the free states parity with the old slave states, in one of the greatest blunders of his presidency, Lincoln chose Justice Stephen Johnson Field to fill the new tenth seat on the Supreme Court.
Field was, for reasons I explain in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, the single worst justice ever to sit on the Supreme Court. Obsessively anti-government, Field also cast several votes undermining Reconstruction. Near the end of his career, he joined the Court’s pro-segregation decision in Plessy v. Ferguson.
The 1866 act sought to break the former slave states’ grip on the Supreme Court in two ways. It reduced the number of judicial circuits from ten to nine, and redrew the map so that only two of these circuits consisted entirely of slave states and only one of entirely Confederate states. Then it sought to reduce the number of justices on the Supreme Court through attrition. Under the new law, new vacancies would not be filled until the number of justices shrunk to seven.
The practical effect of this law was to deny any Supreme Court appointments to the white supremacist Johnson.
Though not originally enacted for the purpose of blocking Johnson — President Johnson signed the act a few months into his presidency — Congress lifted the blockade on new justices almost immediately after Johnson left office. President Ulysses S. Grant, the hero of the Civil War, took office in March of 1869. A month later, Congress enacted the Judiciary Act of 1869, which increased the size of the Supreme Court back to nine.
So when McCain and Cruz suggest that a President Hillary Clinton may be unfit to appoint anyone to the Supreme Court — or, for that matter, when Senate Majority Leader Mitch McConnell (R-KY) ordered a similar blockade on anyone named to fill the current vacancy by President Obama — they are implicitly making a very offensive comparison. There is precedent for a Congress that simply refused to allow a president to place new justices on the Supreme Court. This extraordinary tactic was used to keep a white supremacist president from effectively undoing the new birth of freedom thousands of Americans paid for in blood.
And now, Republicans are deploying that very same tactic, because they don’t want a moderate liberal like Merrick Garland to replace the arch-conservative Scalia.