“We’d fill it.“ These are the  three words of U.S. Senate Majority Leader  Mitch McConnell when asked what the GOP would do if a high court vacancy occurred in the last year of  the president’s  term.

News that 87-year-old Justice Ruth Bader Ginsburg is confronting another cancer diagnosis has reignited speculation that the Trump White House may have an opportunity to do just that.

And if it does?

Some Democrats are poised to deploy a possible “trump” card of their own. This is Congress’ long overlooked power to set the number of justices. If the GOP succeeds in filling a vacancy with a conservative jurist, thus tilting the balance in favor the Republicans with a six to three majority then Congress could then — assuming the president loses and the  Democrats control both branches after the election — expand the size of the court itself.

The last time it was seriously talked about, in the 1937 FDR court packing proposal, it was considered a discredited exercise. (It was also  one that also soon  became moot when the Court itself backed off from its pattern of declaring some New Deal programs unconstitutional.)

U.S. Sen. Tim Kaine, Hillary Clinton’s 2016 running mate, is among those justifying  such a plan now.  Kaine and other Democrats are doing so on the basis of McConnell’s apparent about face from his 2016 election year opposition to President Barack Obama’s attempt to fill a vacancy with the nomination of Merrick Garland. McConnell successfully did so because he felt it unfair to allow a president to put his nominee on the Supreme Court when an election was then pending and a new party might soon be in power.  (McConnell distinguishes the present scenario from 2016 by arguing that unlike then today the Senate is controlled by the same party that occupies the White House and that the sitting president is not a lame duck, i.e., is eligible to stand for re-election.)

In any event, McConnell’s scuttling of Obama’s last High Court nominee paved the way for Obama’s successor  to appoint a more right leaning justice than  Garland, Neil Gorsuch.

Political polarization is so intense that should the president and U.S. Senate indeed follow through with McConnell’s vow to fill a vacancy it seems likely that the reprisal suggested by Kaine might well occur.

If so, it would be the eighth time in U.S. history that Congress took such action.  As with the presently contemplated proposal, the other adjustments in Supreme Court membership were occasioned by a partisan attempt to  either expand or limit a President’s power.

It’s still been a very long time, however, since this has happened. The last episode had its roots in a sharp confrontation over the  mission of post-Civil War Republicans to curtail the authority of  President Andrew Johnson in 1866. (Republicans in Congress wanted to advance  a more aggressive Reconstruction policy against states in the South than the Tennessean  Johnson was willing to implement.)  This was when the number was reduced from 10 to seven.  As soon as Johnson  was replaced by a Republican more in line with Congressional ideology, however, just three years later, the number was increased to nine, where it has stood in the 151 years since.

In Maine, the number of judges allowed to sit on its highest court is also set by legislative enactments and is not constitutionally set in stone.  Though  the state has changed the numerical  composition of its Court  about as often as Congress has done with the U.S.  Supreme Court — seven times in Maine’s  200 year history — the most recent changes – being all of them that have occurred in the last 140 years —  do not appear to be sparked  by either ideology or partisanship.

A case in point is the last time this happened in Maine. This was in 1975,  one of the more politically adversarial times the state has ever witnessed. The Democratically controlled House, then under  leadership of the redoubtable John Martin on the one hand and conservative independent James Longley, Sr. — who had blindsided Democrats with his upset win over Democratic icon George Mitchell a few months earlier — found few areas of common ground in a highly confrontational relationship.

Nevertheless, the Legislature voted to give Longley something no Maine Legislature had done since 1880 — a chance to increase the number of Supreme Court justices a governor could appoint. (Indeed the last time the state had changed the number, in 1930, it had actually decreased the allocation.).

Despite having  such a plum dropped  in his lap, the former Lewiston insurance executive did not exactly jump at the opportunity the Legislature had afforded him. Instead, Longley left the seat vacant for over a  year and a half before elevating Superior Court Justice David Nichols to the position in May 1977.  Longley justified the delay as part of his theme of fiscal conservatism, one that had been a hallmark of his campaign to get elected and his program in office.

Though the Longley episode was over 40-years ago, it illustrates a distinction that sets apart our own narrative and still endures today,  namely a judicial selection process that is not normally dominated by partisan and ideological issues.

Paul Mills is a Farmington attorney well known for his analyses and historical understanding of public affairs in Maine; he can be reached a [email protected]

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