Bench Memos

Obama Surrogate Agrees with McConnell and Grassley on SCOTUS

The White House and its allies are growing more and more desperate to get some traction, any traction at all, for Merrick Garland’s nomination.  Their early “grassroots” efforts turned out to be astro-turfy and ineffective.  Then their vaunted 9-9-9 Plan looked more like a desperate 9-1-1 call.  The latest in their string of failed PR stunts is apparently a plan to have Senate Democrats hold a mock hearing.

According to news reports, their star witness is slated to be Democratic insider Abner Mikva, a former congressman from Chicago, Carter-era D.C. Circuit appointee, and White House Counsel for President Bill Clinton. But, as Politico reports:

[I]f he does appear, Republicans are preparing to launch criticisms of Mikva similar to those they leveled at Joe Biden and his so-called Biden Rule — when the GOP used the then-senator’s comments from 1992 that President George H.W. Bush shouldn’t fill a hypothetical court vacancy in the middle of a campaign season.

Like Biden, Mikva’s previous comments on this topic make him an unusual choice.  In January 2002, just a year into President Bush’s administration, Mikva wrote an op-ed arguing that “the Senate should not act on any Supreme Court vacancies that might occur until after the next presidential election.”  According to Mikva, “Changes in the existing delicate balance could put the very legitimacy of the court as an institution at risk.”  He also went on in some detail about the impact, or lack thereof, that the absence of one justice would have on the Court:

There is nothing magic about the number nine for the size of the Supreme Court. The Constitution does not suggest a number, and the first court was authorized to have six members. The authorized number has gone up and down during our history, usually for very political reasons. It went to 10 in 1863 and then was reduced to nine because Congress was angry at President Andrew Johnson. In the 1930s when the court continued to strike down New Deal legislation, President Franklin D. Roosevelt threatened to increase the size of the court by one for every justice who was over age 70. The plan failed in passage, but “apostasy and death” caused the court to reverse its doctrinal direction.

Vacancies also have persisted when the Senate was unhappy with the particular nominee that the president sent up for confirmation. While sometimes the retiring justice has continued to serve until a successor was chosen, often the resignation was immediate or the vacancy occurred as a result of death. For example, a vacancy existed for three years because Congress was unhappy with President Lincoln’s choices, and then with those of his successor. When Congress was unhappy with Lyndon B. Johnson’s effort to promote Abe Fortas to chief justice, a vacancy persisted for more than a year.

SNL couldn’t have come up with a more entertaining script.



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