Antonin Scalia died on February 13, 2016, eight months before the November election. But Mitch McConnell said it was vital to wait for the next election to select his successor. Anthony Kennedy announced his resignation on June 27, 2018, four months before the election. But Mitch McConnell announced it was vital not to wait for the next election to pick his successor. Do these two positions reflect shameless intellectual dishonesty and blatant hypocrisy?
No, they do not. They are perfectly consistent.
How is that?
The golden threat that runs through McConnell’s reasoning is that only Republicans get to pick Supreme Court justices. Democratic presidents and Senates have no say in the matter.
Why is that?
- once the sperm fertilizes the egg, God immediately supplies a soul to the zygote, and anyone who harms the zygote is guilty of an abominable crime and must be severely punished, and because
- God hates gay people, and because
- God is none too thrilled about affirmative action, and because
- in consequence of the foregoing, God hates Anthony Kennedy and all his works, and demands that we will supply Him with a justice who will ensure that young women are back to aborting themselves with coat hangers, that gays are put back in their place, and that rights of persons of western European descent are jealously protected.
So this means that a good portion of the American public are in a state of orgasmic ecstasy over Kennedy’s replacement, and that they will all be sure to turn out and vote for Trump-supporting congressmen and senators?
Will that be a disaster?
No, it will not, because there are more of us than there are of them, and we are mad as hell, and we are all going to vote in 2018 and 2020.
There are lots of headlines saying Kennedy’s successor will change the court for a generation to come. Is that right?
Kennedy is mostly conservative. The other night I heard a talking head say—and therefore I know it is true—that on the fifteen 5-4, liberal-conservative decisions this term, Kennedy voted with the conservative majority every single time. But on abortion, gay rights, and affirmative action, it will make a difference. Jeffrey Toobin says that abortion will be illegal in 20 states by 18 months from now. Sounds about right to me.
So we should all go bang our heads against the wall, right?
No, that is not right. We have to win the 2020 election and pack the court. Republicans have violated norm after norm. We have no choice but to react in kind, taking advantage of the Constitution’s black letter law:
The size of the Supreme Court is not fixed by the Constitution. It is determined by Congress.
The original Judiciary Act of 1789 set the number of justices at six. When the Federalists were defeated in 1800, the lame-duck Congress reduced the size of the court to five — hoping to deprive President Jefferson of an appointment. The incoming Democratic Congress repealed the Federalist measure (leaving the number at six), and then in 1807 increased the size of the court to seven, giving Jefferson an additional appointment.
In 1837, the number was increased to nine, affording the Democrat Andrew Jackson two additional appointments. During the Civil War, to insure an anti-slavery, pro-Union majority on the bench, the court was increased to 10. When a Democrat, Andrew Johnson, became president upon Lincoln’s death, a Republican Congress voted to reduce the size to seven (achieved by attrition) to guarantee Johnson would have no appointments.
After Ulysses S. Grant was elected in 1868, Congress restored the court to nine. That gave Grant two new appointments. The court had just declared unconstitutional the government’s authority to issue paper currency (greenbacks). Grant took the opportunity to appoint two justices sympathetic to the administration. When the reconstituted court convened, it reheard the legal tender cases and reversed its decision (5-4).