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Rubio Wouldn’t Name a Justice in His Final Year as President, if Elected

The stakes were high for Rubio. (Tom Williams/CQ Roll Call)
The stakes were high for Rubio. (Tom Williams/CQ Roll Call)

NATIONAL HARBOR, Md. — GOP White House hopeful Marco Rubio said he would pledge not to nominate a Supreme Court justice in the final year of his term, if elected.  

Republicans have said President Barack Obama, who leaves office in January, should leave the business of nominating a successor to the late Justice Antonin Scalia to the next chief executive. They argue that Americans should have a voice in the selection of the next justice through the presidential election.  

In a question-and-answer session at the Conservative Political Action Conference, the Florida senator was asked whether GOP and Democratic presidential candidates should pledge not to nominate a justice in the final year of their terms.  

“Sure,” Rubio responded. “I would do that now.”  

“The bottom line is we should not be putting someone, when the balance of the court is at stake, in that position when, in fact, Barack Obama will not be held accountable for it by the electorate,” Rubio later added.  

Scalia’s death in February set in motion an unexpected election-year frenzy in Washington over the scope of the narrowly divided court, whose rulings on polarizing issues like Obamacare, voting rights and campaign finance have heightened the stakes and the drama around the next appointment.  

Rubio is not a member of the Senate Judiciary Committee, which considers judicial nominees. Republicans in charge of the Senate have pledged that Obama’s nominee, who is expected to be announced soon, will not receive a hearing or a vote.  

Democrats have countered that GOP senators are shirking their constitutional duties to provide advice and consent on judicial nominees, and that a presidential term is four years, not three, so whoever occupies that office has a right to send up a nominee and have that selection considered.  

Democrats have also argued that refusing to consider a nominee will leave the court deadlocked with only eight justices, four appointed by Republican presidents and four appointed by Democrats. That composition would cause dysfunction in the judicial branch, Senate Democrats argue.  

Rubio disagreed. “The Supreme Court can function with eight justices. The number nine is set by Congress,” he said Saturday. “I’m not advocating we do this. If we wanted to change it to eight or seven, we could. There’s no magic number nine.”  

Democrats have also pointed out that Congress can set the number of justices on the Supreme Court, but use it to bolster their argument that the Senate has a duty to ensure that the court has nine justices.  

Sen. Mazie K. Hirono, a Democrat from Hawaii who has served on the Judiciary Committee, alluded on Thursday to the fact that the composition of the Supreme Court is set by law.  

“In my view, the law that there should be nine justices on the Supreme Court is violated. Violated unilaterally by the Republicans saying that it’s okay to have eight justices only for over a year,” Hirono said at a news conference with Senate Democratic leaders and members of the Congressional Black Caucus pushing for hearings on the eventual nominee.  

“The last time the Senate didn’t want to provide advice and consent on a Supreme Court nominee was during the Civil War. And at that time, the Republicans actually changed the law to require that the Supreme Court not have 10 justices, but only seven,” Hirono said. “I’m certainly not suggesting that the Republicans take that tactic. What I am suggesting is that they do their jobs, and that we all do our jobs to provide advice and consent when this president submits his nominee.”  

The current structure of the court — eight associate justices and one chief justice — dates to the Judiciary Act of 1869, when the court was expanded after the Civil War. It was that law which President Franklin D. Roosevelt sought to amend to grow the size of the court in his ill-fated court-packing plan. That was prompted by several unfavorable rulings regarding New Deal initiatives.
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