Speaking to reporters after a campaign rally for a Republican U.S. Senate candidate here, Sen. Ted Cruz (R-Tex.) said that there was "precedent" for a Supreme Court with fewer than nine justices — appearing to suggest that the blockade on nominee Merrick Garland could last past the election."You know, I think there will be plenty of time for debate on that issue," said Cruz, when he was asked whether a Republican-controlled Senate should hold votes on a President Hillary Clinton's nominees. "There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That's a debate that we are going to have."
Early last week, Sen. John McCain (R-Ariz.) accidentally said what he was thinking about Senate Republicans' tactics regarding the Supreme Court. "I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up," the GOP declared during a radio interview. "I promise you...."What McCain was describing, of course, was a continuation of a Republican blockade, unprecedented in American history, blocking any high-court nominee from a Democratic president, regardless of merit. A controversy ensued and McCain walked back his emphatic "promise."Sen. Ted Cruz (R-Texas), however, is less concerned with appearances. The Washington Post reported yesterday:
Keep in mind, after McCain's comments, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) conceded that Republicans "can't just simply stonewall" any Democratic nominee, just because he or she is a Democratic nominee. Yesterday, Cruz effectively responded, "Well, maybe we can."It's an amazing posture. Since February, GOP senators have repeatedly argued that the next president, not President Obama, must have the opportunity to fill Supreme Court vacancies. Now, however, there are some Republicans who seem to be suggesting, "Maybe the president after the next one can handle this."In case there are any doubts, it's important to understand the radicalism of an argument like this one. For generations, the governing model, as outlined by the Constitution, was quite straightforward: a president sends a Supreme Court nominee to the Senate, senators consider the nominee, the nominee receives a vote. If confirmed, the justice heads to the bench; if not, it's up to the president to select someone new.What Cruz and others on the far-right are suggesting is that there's no reason to honor this model. Republicans can not only ignore their duties in 2016, the argument goes, they can continue to impose a judicial blockade until Americans choose a president GOP senators find satisfactory.In other words, under the vision Cruz hinted at yesterday, the Supreme Court may continue with eight justices -- or perhaps even fewer -- until 2021, at a minimum, simply because Republicans say so. As we discussed last week, it's part of a philosophy that says a Democratic president is, by definition, an illegitimate president. Advise and consent is a nice principle in our system of government, but it's not nearly as important as raw, scorched-earth, partisan politics.For the record, I'm still not convinced the gambit Cruz suggested yesterday would work. The Senate Republican conference includes some very conservative members, but it also features several senators -- Susan Collins, Jeff Flake, Lisa Murkowski, perhaps others -- who'd likely balk at maintaining an indefinite partisan blockade.But in the meantime, Cruz's comfort with extremist tactics speaks volumes about how he approaches his responsibilities. As New York's Jon Chait put it last week, "The old norms held that presidents were given some deference in filling Supreme Court vacancies. Senators might object to a particular nominee on the basis of ideological extremism or lack of qualifications, but the president's general right to appoint a member of his judicial team was considered sacrosanct. Like all the other norms holding back the exercise of power, this one has now collapsed."