Is a prolonged SCOTUS vacancy really terrible?

[takoma]

The Constitution does not set the number of justices. It has varied from seven to ten (and FDR wanted to allow it to go up by steps to fifteen), and it was actually set at eight for a while. I can even see an argument that it is good to have an even number, on grounds that overturning a lower court or setting a major new policy like same sex marriage or Citizens United by 5 - 4 is extremely divisive, so when the Court is that evenly divided, perhaps it's better to have 4 - 4 and keep the status quo.

I'm not advocating this, since I think someone like Srinivasan should be nominated and approved. But just for perspective, I think we ought to look at the alternative without being strait-jacketed by our party labels.

[jsteele]

I think that an 8 member court might actually benefit liberals at this point because the lower courts are well-stocked with Obama appointees. The more lower court decisions that stand, the likely it is better for the left.

[Anonymous]

Speaking as a litigator, an 8 member court is frustrating because it fails to set clear precedent. The general public pays attention to 3-4 public interest cases per term, but there are dozens of others that matter more to us working in the area. Give us a 9th justice please.

[Anonymous]

This bigger question: Is it in any way necessary? There is no rationale for a President abdicating his duty. It's not like he's burdening the next president with his late term choice. Justices are around 30 years or more.

So this is not about what is right. It is about conservatives coveting the ability to make this pick.

[Anonymous]

Mmm, I think so.

It keeps the door open for the Right to get all huffy and pissy about the appointment, fueling increasing stupidity in their debates and rhetoric.

Unfortunately, the GOP has the worst crop of candidates I've ever seen taking the lead. And so many idiotic representatives talking nonsense. It does no one any good to give oxygen to their fire.

But that's my "off the cuff" thinking.

[Anonymous]

jsteele wrote:I think that an 8 member court might actually benefit liberals at this point because the lower courts are well-stocked with Obama appointees. The more lower court decisions that stand, the likely it is better for the left.

There are some problems with 4-4 splits. First, you will end up with conflicting lower court decisions, i.e. the law in the 9th is different from the law in the 5th circuit. Second, a future court can take up the case again.

[Anonymous]

Anonymous wrote:Speaking as a litigator, an 8 member court is frustrating because it fails to set clear precedent. The general public pays attention to 3-4 public interest cases per term, but there are dozens of others that matter more to us working in the area. Give us a 9th justice please.

+1! No time is a good time for an 8 member court.

[Anonymous]

Republicans should be especially concerned about delaying because they will no longer have as much ability to decisively sway things in favor of conservatives - and in the event of a tie (which will likely happen quite often) the decision made by the lower court stands - and a lot of the lower courts lean liberal.