Finally, the same 1869 federal statute which mandated a 9-member Supreme Court has also established a quorum of only 6 members. Thus, there is no rush to fill any Supreme Court vacancy, in spite of the fact that some future cases might end up tied 4-to-4. Given that Congress has set a quorum of 6 members, it stands to reason that Congress expected some Justices: to recuse themselves in specific cases; to take temporary leave to fulfil other government duties; to recuperate for a reasonable time if ill; and to die. The Court, as a functioning institution, goes on, at least, as long as it has 6 members, and surely Congress must have understood that a 6 or 8 member Court can deadlock. Indeed, historically, there have been lengthy periods of time where the Court, by statute, was expressly composed of an even number of members. For example, when Chief Justice John Marshall was appointed to the Supreme Court, its size was set to 6 members by statute. To the extent worries about deadlock are a consideration, it is a political consideration for the American People, not a legal consideration, constitutional or otherwise.
8 thoughts on ““Tillman Responding to Washington Post Op-Ed: Gregory L. Diskant–Obama can appoint Merrick Garland to the Supreme Court if the Senate does nothing””
If Congress or the Administration is worried about 4-4 votes, they just need to order the assassination of one of the judges. I mean, O already murders American citizens with impunity, doesn’t he?
Where’s that darn pillow?
Yes, keep the number of justices an even number. More deadlocks will curb an activist court. It will also shift the focus to reforming the federal circuit, whose incoherence and inefficiency is too shielded by the Supreme Court.
Ok. Putting down a prediction.
Possibly before the putative November election [if Trump is the nominee, and it looks like he is winning] Mitch McConnell will confirm anyone Obama wants, including Abu Bakr al-Baghdadi, to the Supreme Court in order to throw the election.
After the election and before the inauguration and the swearing in of the new Congress; if he hasn’t already McConnell will confirm anyone Obama wants, including Abu Bakr al-Baghdadi, to the Supreme Court just to hack off the Republican base who will not in theory be able to do anything for two years.
–Or knowing that Trump will not only not get 40% of the vote and probably drag the GOP into losing both the House and the Senate, McConnell will simply immediately confirm Merrick rather than wait for the much more leftist nominee of the Clintons. Better that than have the Democrats declare the filibuster dead for the Supreme Court nominee and name Obama or someone even worse.
Adler and Somin over at Volokh Conspiracy make similar arguments, with additions.
TimL’s assumptions about the election outcome are tenuous predictions that Ithink are very wrong.
On the contrary, I predict Trump will win against either Clinton or Sanders in a landslide.
The Republicans in the Senate will not consent to any Obama appointee no matter who wins the election – that’s another contrary prediction.
An argument of waiver of any thing — without more is lame.
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