Ted Cruz On Merrick Garland: There’s A Historical Precedent For Leaving A Supreme Court Seat Unfilled

The Washington Post reports:

Speaking to reporters after a campaign rally for a Republican U.S. Senate candidate here, Sen. Ted Cruz (R-Tex.) said that there was “precedent” for a Supreme Court with fewer than nine justices — appearing to suggest that the blockade on nominee Merrick Garland could last past the election.

“You know, I think there will be plenty of time for debate on that issue,” said Cruz, when he was asked whether a Republican-controlled Senate should hold votes on a President Hillary Clinton’s nominees. “There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice 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.”

Cruz’s remarks put him at odds with several colleagues on the Senate Judiciary Committee, including its chairman, Sen. Charles E. Grassley (R-Iowa). “If that new president happens to be Hillary, we can’t just simply stonewall,” Grassley told reporters last week.

But Grassley made those remarks after Sen. John McCain (R-Ariz.) told a Pennsylvania radio station that Republicans would be “united against any nominee” put forward by a President Clinton. McCain walked back the remarks, but the threat of a liberal justice replacing the late Antonin Scalia — a move that would create a liberal Supreme Court majority for the first time since the 1970s — has kept many Republicans in Trump’s camp.

  • bkmn

    It will be a moot point Teddy, if the GOP loses the majority in the Senate. Time to kick some pasty butts.

    • Herald

      They can filibuster any nominee, and the Dems are not going to reach 60 members.

      • lymis


        They have a positive Constitutional obligation to consider candidates for the Court that are nominated by the President.

        It would be clear obstructionism, bad politics, and damaging to our country if they voted down an endless series of qualified nominees for the Court, but they would be doing their job, at least as far as their Constitutional obligations go.

        Not even bothering to look at the candidates – and in fact saying that they will not even consider ANY candidate, is a violation of the Constitution.

        • BobSF_94117

          I really don’t think they care anymore.

          • Jmdintpa

            EXCACTLY !!! they dont care and thats why the normal way of things in this country will not work anymore.

          • IamM

            They don’t care and that’s exactly why workable norms must be forcefully reasserted.

      • HKDaniel

        I believe the Dems would pull the nuclear option and remove the filibuster at their first opportunity.
        Time for the Dems to push their advantage, hard.

      • bkmn

        If they control the Senate rules can and will be changed to eliminate the supermajority for filibusters.

    • BudClark

      … some old, fat, white, over-privileged, overpaid. lazy, lying, hypocritical KKKonservative KKKriSTAINist KKKultists .. whatever happened to Anonymous’ list of members and contributors to the KKK who are also legislators, governors, etc.?

      ANY citizen who is ABLE to vote and DOESN’T vote DEMOCRATIC is a party to the DOWNFALL of the United States of America.

      AND any GLBTQAI, etc. person who doesn’t vote Democratic is a kapo … a traitor to their tribe … I don’t care HOW big your dick OR your portfolio is. All the money in the world won’t protect you when they come for YOU.

      It’s time we stopped kitty-footing around — Republicans want us DEAD.


      It’s time SOMEBODY said so. And those of us gay elders who are old enough to remember what our “benevolent” government is capable of are dying off — and the young queers don’t want to believe it was ever THAT bad.

      Well, it WAS … and it can get that bad AGAIN unless you get off your asses and get out and VOTE!!!

      • I really wish you wouldn’t sugar-coat what you say. You should speak your mind. 😉

      • McSwagg

        You appear to be channeling BillBear (and that’s a GOOD thing). Nicely expressed!

  • Tiger Quinn

    It chills me to the bone that after two hundred years of a rock solid Republic, the conservatives have found a way to mess with the Constitution.

    • Paula

      Their hatred of things not like them and belief in the jeeby runs deep.

    • Stephen Elliot Phillips

      Well if u dont count the era before, during and after the civil war.
      Which was the last time an uncompromising pack of treasonous dogs took over the conservative side of congress

    • Gerry Fisher

      They’re burning the village to save it.

  • Michael Smith

    No there isn’t. A Supreme Court vacancy has never lasted for five years. You’re full of it.

    • lymis

      Absolutely. There’s a huge difference between having a smaller Court with all the seats filled and leaving an existing seat unfilled for partisan political reasons.

    • Uncle Mark

      Trump: “Hey, you whiny little bitch, what are you doing talking to reporters?!!” “Get your ass https://uploads.disquscdn.com/images/6c376dd91f1dcc3266f823c827f800c48ab25dfeccf26b85148a491ac191bd59.jpg back on those damned phones !!”

    • Balderdashing

      Long precedent, meaning since March, the new precedent they’re determined to set in flagrant disregard of the Constitution.

    • NancyP

      Furthermore, longer SCOTUS vacancies in the early years may have been due to travel issues – horseback, not airplane.

  • T-Batwoman

    It must be nice to get paid to not do your frackin’ job! smh…

  • Gustav2

    No senator who is a close associate of David Barton can be trusted commenting on history or the Constitution.

  • DaddyRay

    When HRC wins the WH and we take control of the Senate Hillary should nominate Michael Moore just to finish off all of the T-baggers

    • Stubenville


  • Fantasyland

    “I won’t grow up
    I will never even try
    I will do what Peter tells me
    And I’ll never ask him why”

  • b

    Liberals are winning now. But what’s called “liberal” is just the law. This whole nation is liberal. It’s the exact reason we are hated by fascists. The Constitution is a liberal document, founded and amended by “liberals.” Republicans used to be “liberals” before they were fascists. When there is a 4-4 court, the liberal Circuit judge’s decision stands. So this is great for us. Garland, as a middle-of-the road pick can stay off the court, as far as I’m concerned.

    • marshlc

      Recently read a WWII spy thriller, written during the war. I found it interesting that the word “liberal” was used as shorthand for basic decent patriotic American.

  • Texndoc

    I was wondering where he was. They’ve sent him where things couldn’t be worse, so what the hell. It’s still hilarious if Cruz had held on for just a weeeeee bit more, he would never have had to endorse Trump and have his political stock with his fans crash like 1929. PussyGateFriday was just around the corner.

  • Jean-Marc in Canada

    Creepy Kissing Zodiac Killer says what now?

  • Treant

    So let’s see. They refuse. Eventually, Hillary goes nuclear and states that the Senate has declined to advise her and therefore she can seat anybody she wants.

    Six on one, half dozen on the other as to how the Court decides, but I cannot imagine they’d be too pleased with their own Court being dissed by the Senate.

    • boatboy_srq

      It would be UNPRECEDENTED UNCONSTITUTIONAL UNPATRIOTIC TREASONOUS OBSTRUCTION!!11!1! if a Dem Senate did this to a GOTea pResident.

    • Sam_Handwich

      is it possible that Obama will attempt to take that road?

      • Treant

        I doubt it, but it might start during the Lame Duck session. He could at least float the idea to see what America thinks about it without harming Clinton’s standing.

        And if I thought of it, don’t think they haven’t got an even better plan. They’re way smarter than I am.

        • Sam_Handwich

          i imagine he’d have public opinion on his side, 60%+

      • chasmader

        Justice Kennedy was a recess appointment. There’s no reason why President Obama wouldn’t also go down this road.

    • zhera

      How inceptionistic. The court deciding on whether the Senate can block a court appointment, Senator Cruz thinking a 8 member court is just fine.. what if they say that the President can do as she likes, will Cruz still be thinking that a 8 member court is valid?

      • The number of SCOTUS seats is not codified. There have been as few as 7 and as many as 11 over the history of the U.S. Odd numbers are preferred, so as to minimize tie scores (and thus the previous court’s decision stands).

        • The_Wretched

          It’s more that the SCT level is a nullity and the lower court decision stands.

    • John30013

      SCOTUS Blog had a pretty convincing article recently about why this probably can’t happen.

    • NancyP

      The current eight SCOTUS justices are likely angry at the foot-dragging of the Republican Senate. Remember, they are deadlocking currently, and that means that eventually similar cases will return to the SCOTUS for consideration – adding to the SCOTUS workload. Plus, 8 opinion-writers available, not the usual 9, so that’s an extra 2% of work for each of the 8 now on the SCOTUS bench.

  • Christ: what an asshole.

  • Sam_Handwich

    any chance Julian Castro will run against this schmuck in 2018?

  • lymis

    The fact that our nation might not crumble if the Senate doesn’t do their Constitutionally required duty doesn’t mean that they’re excused from doing it.

    • Robert Conner

      You know that and I know that but does the Texo-Cubo-Canadio-lizardman in human skin know that?

      • IamM

        It’s not that he doesn’t know, he just doesn’t fucking care about anything but his own ambitions to be God-king of the teavangelical caliphate.

  • Silver Badger

    While in Colorado, I hope Cruz takes a few mine tours. We have so many old, forgotten, hidden mines.

  • When Clinton is elected, and she nominates Mr. Obama to fill the vacant SCOTUS seat, and the Democrat-controlled Senate approves the nomination, we should all raise a glass (not of Yuengling) to the 2014-15 Senate and in unison yell, “FUCK! YOU!”

    • Blake Jordan

      How long can the rethugs filibuster for, because the democrats won’t have 60 senate seats…

      • Todd20036

        Ah, you see, the democrats may invoke the nuclear option now that it’s obvious that the GOP won’t compromise.

        Heck, they squandered the chance at appointing a moderate.

        The nuclear option reduces the requirement to a simple majority.

        Also, Clinton can appoint the justice as a recess appointment.

        • Orly

          But only if the senate goes into recess – something they’ve been pretty good about not doing.

        • Good point. If the Democrats get control, then can put the Senate in recess for ten days to allow Clinton to appoint a replacement while preserving the filibuster for when they become part of the minority again.

      • Nuclear option WILL be used for appointments. The era of “civility” is over – and whatever gets done will have to happen in the first two years. The problem for legislation will be the House – unless there is a bridge built between Democrats and the least-conservative Republicans (the opposite of what worked for Reagan), it is going to be more obstructionism. Otherwise the House will spend all its time and money impeaching President H. Clinton the way they keep “repealing” the ACA.

        • sword

          Don’t overestimate Democrats for doing the right thing. They think that by always ‘compromising’ with the forces of evil they will always come out ahead. “Don’t wipe out Lex Luthor…he will eventually learn his lesson and turn to righteousness”.

      • Balderdashing

        Maybe the Dems can hold a sneaky session as was used by the NC legislature to ramrod HB2 through.

    • LydiRae

      I really, really want to see this happen.

    • Rrhain

      There are two problems with that:

      1) He doesn’t want the job.

      2) Even if he did, he’d have to recuse himself on a huge number of cases since they will involve legislation he was involved with such as the ACA, his executive orders, etc.

      It’s a lovely thought, but it’ll never happen.

  • Texndoc

    HUGE turnout for Senator Cruz and the Colorado Senator candidate. You can imaging the poor LaQuinta employee: “Renaissance Ballroom! No! Not Number one! Renaissance Ballroom Number two in the back!!”


    • Robincho

      I always thought that LaQuintas were pretty fifth-rate…

    • Paula

      Is he leaning to suck that man’s soul out of him. Creepy energy vampire.

  • lymis

    At some point, we need to put some teeth into the “advise and consent” portion of the Constitution. It needs to be made official that the choice not to review and vote on a judicial nominee is tacit CONSENT to that nomination, not a way around allowing it.

    Congress cannot be allowed to prevent the President from doing something that is Constitutionally part of the President’s responsibilities. That’s not how checks and balances work. They need to participate, not knee-jerk obstruct.

    There needs to be a time limit. If Congress doesn’t act in a preset period of time, like 90 days, the President should be able to appoint someone to fill the vacancy.

    • zeddicuskotor

      Normally this was fixed with recess appointments, but ever since the court suddenly decided that the president no longer has that power, means we’re stuck in this situation.

    • The_Wretched

      I hope the issue goes that way and soon. The Senate has gone off in uncharted waters in failing to do its job. The system needs to respond to allow appointments to happen. It’s negligent (at best) to not do their job.

  • Jack

    If he literally said that there was precedent for having fewer than 9 justices, then he is right. The Constitution establishes a supreme court but does not set a number for the justices. The Judiciary Act of 1789 set the number at 6.

    Currently the number is 9. But there’s a vacancy. If he wanted to be on point, (hahahahaha) he needed to discuss precedents for long-standing vacancies.

    I don’t know anything about Breyer’s comment, but if he said there’s been no impacting the Court’s ability to do its job, he is simply wrong.

    There are fewer people to review the writs for cert, so there is more work for everyone. Certain cases will be postponed, so “justice” will be delayed. There is no tie breaker, so a tie sets no precedent. Whatever Circuit or Circuits Scalia oversaw, there is either no Justice in charge or that, too, has been parceled out. There are fewer justices to write decisions; this then means that even when a case has been heard and decided, it will take longer for the decision to be written.

    AND given the ages of Ginsburg, Breyer, and Kennedy, there’s a real chance that during the next 8 years there will be three more vacancies.

    • Expansionista

      I have long advocated for expanding the Supreme Court to 15 (or perhaps 21) justices to increase diversity. More women, more LGBTs, more Asians, Latinos, and African-Americans, from different parts of the country, from different law schools, and different professional backgrounds. Enact term limits, mandatory retirement age, and define the circumstances in which a justice must recuse her/himself, as well as well-defined standards for conduct. Televise ALL court sessions and conferences, no more meeting behind closed doors. Also, tightly define the role of the “Chief” Justice as an administrator, so that there can be no shenanigan-like abuses of power as have occurred with Roberts.

      • IamM

        A larger SCOTUS with rotating terms replacing one justice something like every two or four years would probably be good.

    • canoebum

      One of the reasons for creating our Constitution, as set forth in the Preamble, is “to ensure justice”. The actions of the GOP are contrary to the Constitutional principles of the United States. They have clearly failed in their duty and should all resign in disgrace. Ha! Who am I kidding? They’re Republicans, they don’t give a shit about the Constitution except parts of the Second Amendment.

  • Blake Jordan

    I assume it is not possible to take the House & Senate GOP to court for not doing their jobs, and still getting paid…

    • Steve Teeter

      I’ve long wondered about that.

  • Robert Conner

    Is there a precedent for having a taxidermist stuff a former justice and have him propped up in a chair? If so, I’d welcome the non-voting former/current Scalia back on the court under those conditions. After all, how much more decayed could he be than he was already? Come to think of it, Clarence Thomas hasn’t spoken in so long maybe we should check to see if he’s still alive.

  • Gregory B

    I hope this miserable SOB loses his seat in the Senate.

  • Mark Neé Fuzz

    Between this and the proposal to just let the Supreme Court die out among other things, do we really need any more reasons to vote Republicans out?

  • Thorn Spike

    The Cubanadian is still ignorant of our American ways.

  • Tiger Quinn

    So what happens if she gets elected and Obama does a recess appointment? Kennedy was one. If we’re going to talk precedent. There’s really not much anybody could do about that other than scream and threaten a lawsuit, I guess.

    • The_Wretched

      Recess appointments are a thing of the past. There was a SCT case that said the President can’t recess appoint so long as the Senate fakes being in session – even without quorum. It’s facially bad and ridiculous law but that’s where we’re at.

      • Paula Key

        Just saying, -as a Canadian, I’m wondering why our elections are so tame compared with the USA. We now have a pink shirted Prime Minister walking in Prides all over the country.

  • Paula

    Well, it could work with 7, if Thomas had an accident.

  • Stephen Elliot Phillips

    I said before, ill say it again. Ginsberg is probably the next to retire. That would leave the court exactly where the rethugs want it.
    With 4 right wing voting majority and a minority 3 liberal judge court.
    If u cant get what you want thru legitimate means, cheat the system.

    • Orly

      Yep, that’s exactly what they do.

  • i am seriously hoping that if the Democrats take the Senate, and Hillary Clinton wins the presidency, that President Obama pointedly withdraw the Garland nomination – the idea being that Garland was offered as a compromise moderate, but that the incoming president will be able to nominate a less fettered candidate. Perhaps even Barack Obama himself! (As Ted Cruz says, there’s precedent for that . . . (William Howard Taft, president who was later appointed to SCOTUS)).

    • canoebum

      I feel a little bad for Judge Garland. He was badly disrespected by the GOP Senators, an act which will be recorded in US history. On the other hand, he is still the Chief Judge of the DC Federal Circuit, a lifetime appointment to a very influential position in the US government. If suits against government regulatory agencies lodged by the GOP and their lapdogs don’t get heard very often going forward, they’ll have no one to blame but themselves.

    • KnownDonorDad

      Appointing Obama would be amazing. The wailing and gnashing of teeth by the religious right, alt-right, and various social conservatives would be legendary.

  • JellyDonut

    Wait, he crawled out of Trump’s ass long enough to say something?

  • 2patricius2

    A historical precedent for the Senate unilaterally reducing the size of the SCOTUS? Well, the Republicant Congress has certainly set precedents for government shutdowns, and they have set modern day precedents for days off. Cruz looks in the picture above like he has a bad case of constipation. Prayer won’t help that.

    • Talisman

      The Constitution does not set the number of justices. That is a matter of law. There have been as few as 6 justiceso, but never more than 10 (FDR tried to increase the number of seats to 15, but was slapped down hard by Congress with bipartisan support).

  • Two Can Cite

    There is also a historical precedent for arresting, trying, and punishing treasonous obstructionist legislators. Does not end well for traitors like Cruz.

  • shrumpi

    What about listening to “the voice of the people” after the election?? Isn’t that what Turtle McConnell said???

    • canoebum

      He said that when he was sure Jeb! was going to be the nominee. McConnell isn’t as smart as he thinks he is. He was wrong about Obama getting a second term, and wrong about the GOP winning the Presidential election.

    • lymis

      He didn’t say WHICH election. He obviously meant the next election with a Republican winner.

  • Gerry Fisher

    So…douchebaggery has existed for a long time. Color me not surprised.

    • pj

      im not chilled. im pissed.

  • Gene Perry

    Teddy is just trying to make himself relevant again … once Trump is out of the picture, someone will need to lead the GOP & Teddy wants to be that leader. Heaven help us all.

  • pj

    cruz is counting the seconds until he is the center of attention again. creep.

  • Ninja0980

    Someone should point out that “moderate” John McCain already let the cat out of the bag on this last week.
    Yes Ted Cruz is a slimy asshole but the fact remains he is with the rest of his party on this one, just as Trump is the Republican Party without the dog whistles.
    Get out and vote Blue this fall and then Cruz, McCain and the rest can be told to go to hell.

    • Herald

      And vote blue in 2018! We have to get these anti-government haters out of the Senate, Congress, and State offices.

  • TrollopeReader

    Hi, Ted ! I look forward to seeing you face a spirited (and losing) primary and / or general election in 2018 !! ugh, America can’t stand you.

  • JT

    Ted Cruz On Merrick Garland: There’s A Historical Precedent For Leaving A Supreme Court Seat Unfilled

    As if Rethugs have any concern at all for precedent in their continuing sabotage of the government.

  • The_Wretched

    Pay attention to this issue. We’ll see the RWNJ retcon history to suggest that trimming the court is perfectly normal and it’s always been that way (we’ve always been at war with easteurasia).

    They are starting to make a new fictional history. We can’t let them get away with it.

    • KnownDonorDad

      They’ll put David Barton on the case.

  • Whicker Park

    I just want to put my boot into his face. And I’m in a wheelchair!

  • OdieDenCO

    yeah, teddy, there is also precedents for beating senators senseless with a cane. just because it was done in the past doesn’t mean it’s right for today. DO YOUR JOB or resign!

  • abel

    Ted Cruz is truly evil. He’s no more a Christian than Hitler was, in spite of being anointed by Daddy. He makes all the right noises, but Ted’s only God is Ted. We’re very lucky that Trump (who is merely crazy) is running against Clinton, because he can be beaten. I’m not sure Hillary, given her history, could have beaten the evil Ted Cruz. He is the most loathed man in the Senate, and he deserves his reputation.

    • Rocketman21

      If one is loathed by the establishment they definitely have my vote. Your judging others is a tad off what the scriptures say to do, “life long Christian” that you are. You stand behind a criminal, murdering, lying politician and think God is pleased? Time to crack open the book

      • abel

        Gee, my very own personal troll. What did I do to merit such an honor?

  • Richard

    When the Democrats take over the senate in January the first thing Schumer must do is change the 60 vote rule to a simple majority rule for stopping filibusters. If they don’t Hilllary won’t be able to appoint a dog catcher much less a supreme court nominee.

    • lymis

      Even if they only do that on judicial appointments, that would be fine.

  • IamM

    There’s more precedent for nine.

  • Nathan Broussard

    Move on, nothing to see here except a crazy twat wanting attention.

  • KnownDonorDad

    As soon as the election is over, President Obama should initiate a Marbury v. Madison-style SCOTUS case against Sen. McConnell and his colleagues. The Senate doesn’t have to approve a given nominee, but failing to hold a hearing (which of course would highlight their obstructionism to the electorate) this long is unprecedented.

  • Rod Steely

    On the plus side – at least they’re being up front about what assholes they are.

    • CB

      Talk about making lemonade! /s

  • jsmukg

    Lyin’ Ted slithers from under his rock. There is no comparable atrocious and deliberate obstruction of a Supreme nominee in US history and therefore no ‘precedent’ whatsoever–simply the lack of an exact legal specification about the required number of Supremes. Rabid reactionary treason is also not covered, sanctioned, nor excused in the Constitution, defeaTED.

  • McSwagg

    Kruzty Komical the Klown continues to terrorize America. We are in a perpetual Halloween nightmare.

  • Acronym Jim

    There is zero historical precedence for intentionally leaving an open seat open for an extended period of time, but there IS a long historical precedence for Congress actually bringing nominees up for a vote.

  • JCF
  • Orly

    What I’m wondering is, what can actually be done about it? If the senate remains in republican hands, and they just refuse to move, what recourse is there?

    Considering their behavior over the last 8 years, I would not be surprised if they did in fact continue to ignore their duty.

  • Gianni

    I’m having a difficult deciding whose mouth is more repulsive looking – Ted’s or Donald’s?

  • jonfromcalifornia

    Let’s win the Senate first. If you have friends who have not yet voted in Nevada and New Hampshire, please urge them to vote Blue all the way. We need to teach these evil Republicans a lesson in “pay back”.