Opinion | Scott Lemieux: Why Republicans should reconsider filling any Supreme Court vacancy this year. - NBCNewsTHINK
” — a partisan action that is formally legal but upsetting to established norms.
Democrats would, naturally, charge Republicans with hypocrisy, given how many senators piously invoked the upcoming election in 2016 when justifying their decision not to even give Garland a public hearing. But, like most charges of hypocrisy, doing so would likely be ineffectual: Opportunistically inventing and then discarding “procedural norms” is almost as natural as breathing to politicians of both parties.
For an example of how, one need but look to the earliest days of the nation. After John Adams and his Federalist Party were crushed by Thomas Jefferson and his Democratic-Republicans in 1800, a lame-duck Congress — which served for a much longer period at the time — not only confirmed a new chief justice in John Marshall, but created a whole new level of appellate courts and filled them with Adams nominees.
As this historical episode demonstrates, judicial power is fragile, because Article III of the U.S. Constitution gives Congress the power to manipulate the size of the Supreme Court and make “exceptions and regulations to its jurisdiction” — which it has done more than once. Republicans in the Reconstruction Era strategically expanded and then contracted the size of the Supreme Court, and the Democrats under President Franklin D.
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