By Paul Mills
“We’d fill it.” Those were the three words of Senate Majority Leader Mitch McConnell when asked what the GOP would do if a high court vacancy occurred in the last year of the President’s term.
News that 87-year–old Justice Ruth Bader Ginsburg is confronting another cancer diagnosis has reignited speculation that the Trump White House may have an opportunity to do just that.
And if it does?
Some Democrats are poised to deploy a possible “trump” card of their own, which is Congress’s long overlooked power to set the number of justices. If the GOP succeeds in filling a vacancy with a conservative jurist, thus tilting the balance in favor of the Republicans with a 6-3 majority, Congress could then, assuming the President loses and Democrats control both branches after the election, expand the size of the court itself.
The last time it was seriously considered, in the 1937 FDR court–packing proposal, it was considered a discredited exercise. (It was one that soon became moot when the court itself backed off from its pattern of declaring some New Deal programs unconstitutional.)
Sen. Tim Kaine, Hillary Clinton’s 2016 running mate, is among those justifying such a plan now. Kaine and other Democrats are doing so on the basis of GOP leader McConnell’s apparent about–face from his 2016 election year opposition to President Obama’s attempt to fill a vacancy with the nomination of Merrick Garland. McConnell successfully did so because he felt it unfair to allow a president to put his nominee on the court when an election was pending and a new party might soon be in power. (McConnell distinguishes the present scenario from 2016 by arguing that, unlike then, today the Senate is controlled by the same party that occupies the White House and that the sitting president is not a lame duck.)
Political polarization is so intense that should the President and Senate indeed follow through with McConnell’s vow to fill a vacancy, it seems likely that the reprisal suggested by Kaine might well occur.
If so, it would be the eighth time in U.S. history that Congress took such action. Earlier adjustments in court membership were likewise occasioned by a partisan attempt to either expand or limit a president’s power. This includes the last two episodes, for example, when in 1866 it reduced the size from 10 to 7 so as to rein in the authority of President Andrew Johnson and in 1869 when it increased the size to 9 in favor of Johnson’s successor, Civil War hero Ulysses Grant.
In Maine, the number of judges allowed to sit on its highest court is also set by legislative enactments and is not constitutionally mandated. The state has changed the numerical composition of its court about as often as Congress has done with the U.S. Supreme Court – seven times in Maine’s 200–year history. Of the only two that have occurred in the last 140 years, neither appears to be sparked by either ideology or partisanship.
It was 1975 the last time this happened in Maine during one of the more politically adversarial times the state has ever witnessed. The Democratically controlled House, under leadership of Speaker John Martin on the one hand, and conservative Independent James Longley Sr., who had blindsided Democrats with his upset win over Democratic icon George Mitchell a few months earlier, on the other, found few areas of common ground in a highly confrontational relationship.
Nevertheless, the legislature voted to give Longley something no Maine legislature had done since 1880, which was a chance to increase the number of Supreme Court justices a governor could appoint. (Indeed, the last time the state had changed the number, in 1930, it had actually decreased the allocation.)
Despite having such a plum dropped in his lap, the former Lewiston insurance executive did not jump at the opportunity the legislature had afforded him. Instead, Longley left the seat vacant for over a year and a half before elevating Superior Court Justice David Nichols to the position in May of 1977. Longley justified the delay as part of his theme of fiscal conservatism, one that had been a hallmark of both his campaign to get elected as well as his program in office.
Paul Mills is a Farmington attorney well known for his analyses and historical understanding of public affairs in Maine; he can be reached by email at [email protected].