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McCain's Supreme Court Strategy Leads to Nuclear Senate

Sen. Ted Cruz (R-TX) has a long history of off-the-charts right-wing views. He has suggested that if Democratic nominee Hillary Clinton were to win the presidency, perhaps the Supreme Court should remain at eight justices, denying her the right to appoint a successor to Antonin Scalia who died last February.

Some conservative think tanks have begun arguing that the best way to prevent a progressive majority on the court is to keep it smaller. This would be akin to President Franklin Roosevelt's "court packing" scheme announced in 1937 to increase the size of the court to shape it to be friendlier to his New Deal programs.The plan was rendered moot by the change of heart of two members of the court, known as the "switch in time which saved nine," and the Senate rejected it 70-22.

In this case, the proposal could be termed "court squeezing."

The Judiciary Act of 1869 established the current size of the court: a chief justice and eight associate justices. In theory, the size of the court could be altered by act of Congress with the president's signature. This is hardly likely if Clinton is in the White House.

The alternative way of keeping the court at eight was shamefully suggested by Sen. John McCain (R-Ariz). Speaking on a Philadelphia radio program, McCain said, "I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up. ... I promise you."

A McCain staffer later, rather weakly, attempted to amend McCain's declaration by saying "Senator McCain believes you can only judge people by their record and Hillary Clinton has a clear record of supporting liberal judicial nominees."The suggestion implied by both McCain and Cruz remains clear. If Clinton wins the presidency and the Republicans maintain a majority in the Senate, they could in theory extend their already outrageous refusal to even hold hearings to consider any nominee appointed by President Obama. They have already, in totally unprecedented fashion, kept Obama nominee Merrick Garland waiting longer than any nominee in history — by far.

The Senate majority in the next Congress seems to rest on six extremely close toss-up races in New Hampshire, Nevada, Pennsylvania, North Carolina, Missouri and Indiana. But if Republicans slip into the minority, they could continue the blockade of nominees by employing the filibuster requiring 60 votes and therefore a handful of Republican votes to confirm any Clinton nominee.

Clinton’s running mate, Sen. Tim Kaine (D-Va.), has already addressed this eventuality, threatening in a Huntington Post interview to employ the so-called "nuclear option": "I was in the Senate when the Republicans' stonewalling around appointments caused the Senate Democratic majority to switch the vote threshold on appointments from 60 to 51. And we did it on everything but a Supreme Court justice. ... If these guys think they're going to stonewall the filling of that vacancy or other vacancies, then a Democratic Senate majority will say, 'We're not going to let you thwart the law.'"

This depressing death spiral could indeed destroy the Senate's filibuster rules.

In November 2013, the Democrats, then in control of the Senate, used a questionable parliamentary ploy to unilaterally reinterpret existing Senate rules to permit them to end filibusters with just a simple majority vote on judicial nominations. They exempted Supreme Court nominees because the Democratic leadership did not have sufficient votes to apply the new reading of the rule to nominations for the highest court.

At the time, I wrote this in The New York Times:

"The Senate Republicans, by blatantly and transparently obstructing President Obama's judicial nominations, have goaded the Democrats into an historic mistake. To reach understandable ends, they have adopted tragically flawed means. By use of the so-called 'nuclear option,' Senate Democrats have now established the principle that a simple majority in the Senate can change any rule at any time."

In my judgment, it would be tragic if the indefensible behavior suggested by McCain (who should know better) and Cruz provokes a new Democratic majority to rewire the Senate rules to overcome a Republican wall of partisan intransigence.

In the future, any president backed by a partisan Senate majority would no longer have to consider the views and seek the votes of at least a handful of members of the opposition party. He or she would be free to select the most ideologically pure candidate and someone likely young enough to serve on the court for many decades.

This is a prescription for insuring a Supreme Court beset by the lamentable hyper-partisan polarization that is at the root of current congressional dysfunction.

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