Neil Gorsuch will now undergo a rigorous examination of his qualifications to sit on the U. S. Supreme Court. Before, during and after this inquisition, Democrats and those who are their acolytes in the media will bemoan the fact that since Antonin Scalia died a year ago, we have had only eight members of the Court to make decisions. Some of those who oppose Mr. Gorsuch will claim the Republicans “stole” the seat that President Obama tried to fill with Merrick Garland. This persists in spite of former Senator Harry Reid and present Senator Chuck Schumer, who, during Republican administrations insisted that it would be unwise to hold hearings on a nominee to the Court during a presidential election year, those being 1992 and 2004.
Before you swallow such swill, perhaps a little history lesson and common sense will restore sanity to the discussion.
First, the number of Justices on the Supreme Court is not set in the Constitution, never to be changed. The number is a legislative act. And a little basic research (which many of the present administration’s critics seem unwilling to do), will show that many of the years since 1789 have seen fewer and even more sitting Justices.
From 1789 to 1807, the number was six. The law changed, and from 1807 to 1837 there were seven, then increased to nine. That held until the Civil War. in 1863 , when ten sat on the court. Three years saw that number on the Court, when it was reduced to seven again. And the law changed in 1869 to nine, which it has remained to this day. Guess what? The republic has survived! In addition, many decisions have been rendered when one or more Justice recused himself or herself because of a conflict of interest. And the republic still lives.
In 1937, President Franklin Roosevelt, upset that some of his New Deal programs were declared unconstitutional, tried to get the law passed to allow him to appoint up to six more members to the Court, according to a formula based on the age of the sitting justices. Even his own party abandoned him on this, and Roosevelt admitted this was his worst political defeat. The republic survived.
So if you are about upset over a year without nine Justices, chill out. If the Congress wished, the number could be altered again, and the republic will survive!