Speaking to reporters while campaigning for Republican candidates on Wednesday, Sen. Ted Cruz suggested that Republicans could block a Democrat president from filling the vacant Supreme Court seat indefinitely, when he was asked about Supreme Court vacancies:
For those of us who care passionately about the Constitution and Bill of Rights, who care about free speech and religious liberty and the 2nd Amendment, the best way to protect those rights is to win on Election Day so that we see strong conservatives nominated to the court, and maintain a Republican majority in the Senate to confirm those strong conservatives.
Then in a quote later provided by his office, Cruz said:
There will be plenty of time for debate on that issue, there is long historical precedent for a Supreme Court with fewer justices, just recently Justice (Stephen) 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.
Breyer said this week on MSNBC’s “Morning Joe” program that “the mechanics works about the same” with a 4-4 split on the court as they do with the normal 5-4.
The size of the court is set by federal law and has changed over the years. Initially, there were six justices and court had ten members during the Civil War. There has been a nine-justice court since 1869.
Cruz is the second Republican to make such a suggestion. Sen. John McCain made a similar assertion earlier this month, saying:
I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.
Senate Republicans aren’t unified on keeping Scalia’s seat vacant. After McCain’s comments, Senate Judiciary Committee Chairman Charles Grassley said Republicans “can’t just simply stonewall” nominees to the Supreme Court even if the president making the choice is Democrat Hillary Clinton. And last week, Cruz’s colleague, Sen. Jeff Flake, suggested the GOP should confirm President Barack Obama’s nominee, Merrick Garland, to avoid having to swallow a more liberal nominee under Hillary Clinton.
An indefinite GOP blockade of Supreme Court nominees would almost likely lead to the Democrats further eroding the Senate’s supermajority requirement for Supreme Court nominees. Senate Minority Leader Harry Reid has already called for reducing the requirement from 60 votes to a simple majority. Under Reid, Democrats changed the Senate rules to allow all nominees but Supreme Court appointments to be approved by a majority vote. A move Harry Reid once said would be the end of the Senate.B