Democrats Must Take Away the “Loaded Court” By Revising the Statutory Structure of the Courts.

If the last 4 years have taught us anything it is that the Senate chooses the Supreme Court. Despite the formal structure of our Constitution, the Article II power to appoint federal judges is plainly circumscribed by the “advice and consent” power of the Senate.

The Merrick Garland outrage taught us that the power of a president to nominate must yield to the willingness of a Senate to consider and confirm. No mechanism exists by tradition, custom or law to force one political branch to respect the preference of the other to even consider a nominee — much less to confirm that nominee at anytime.

We have to imagine that single-party domination of the Senate can stymie judgeship nominations until the presidency is controlled by a party to its liking. The only remedy — short of a constitutional amendment — appears to be at the ballot box.

Yet, there may be a solution short of the politically-risky tactic known as “court-packing.” That solution lies in the statutory structure of the Court that goes back to the Reconstruction era.

In 1869, the Judiciary Act established a Supreme Court of nine justices including the only justice required by our Constitution — the Chief Justice of the United States.

But, that statute did not likely anticipate the “McConnell Maneuver” whereby a legitimate presidential nomination would be dead -ended by a refusal to even consider or vote on a nominee — thereby effectively stealing the open seat for a succeeding president.

We can eliminate this tactic by a simple statutory revision within the power of the Congress (and an executive willing to concur) that increases the number of justices on the High Court by one associate justice each time the Senate determines to refuse to consider a nominee during the term of a sitting president.

If the Judiciary Act of 1869 is revised to add a new justice to the Supreme Court each time the Senate fails to act on a nomination for the Court caused by a vacancy of either death or retirement, the number of total justices rises by operation of law. Such a statute would be perfectly constitutional.

However, to avoid “gaming” the process, any such vacancy would and must remain vacant (unfilled) unless and until the Senate shall consider the nominee who was previously refused consideration.

Under the current state of affairs and assuming the 45th President refused to nominate and the Republican Senate refused to consider Merrick Garland, the Court would now have ten justices and an additional unfilled seat.

This method avoids the constitutionally-permissible but institutionally indefensible tactic of claiming there is some special treatment for nominees selected in an election year. The claim that there is some “principled” election year rationale for the selection of justices, or their consideration is now irreparably shredded.

However, by this statutory change, the temptation to simply ignore presidential appointees because a different political party temporarily controls the Senate majority can be resisted; and the constitutional role committed to the executive branch can be vindicated in law.

-Albert Turner Goins

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Albert Goins

Albert Goins

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