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Sizing the Highest Court: How Maine’s is a different case study than that of the nation’s by Paul Mills

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Paul Mills

“We’d fill it,” the three words of 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 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, Congress’s 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 Congress could then – assuming the President loses and Democrats control both branches after the election – expand the size of the Court itself.

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

Senator 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 GOP Leader McConnell’s apparent about face from his 2016 election year opposition to President 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 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.)

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 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. Earlier adjustments in Court membership were likewise occasioned by a partisan attempt to either expand or limit a President’s power. This includes the last two episodes, for example, when in 1866 it reduced the size from 10 to seven so as to reign in the authority of President Andrew Johnson and in 1869 when it increased the size to nine in favor of Johnson’s successor, Civil War hero Ulysses Grant.

It’s been quite some time since this has happened. The last episode originated 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 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 mandated. 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. Of the only two that have occurred in the last 140 years neither appears to be sparked by either ideology or partisanship.

James Longley, Sr.

It was 1975 the last time this happened in Maine during one of the more politically adversarial times the state has ever witnessed. The Democratically controlled House, under leadership of Speaker 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 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 of 1977. Longley justified the delay as part of his theme of fiscal conservatism, one that had been a hallmark of both his campaign to get elected as well as 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 by e-mail pmills@myfairpoint.net.

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10 Comments

  1. Thanks for the historian’s sanity in this, Paul. I’m interested in the rationale for democrats giving Longley the opportunity to expand the Supreme Court. Seems like a different world.

  2. Great insight, Paul. As always, you challenge us to understand how we’ve come this far, despite our ideology and partisanship! Thank you for these insights.

  3. Thank You Paul for the very informative column. You know how to make the gobblygook make sense.

  4. What an interesting column. Sure makes me wonder at the reasoning of some people and certainly gives us perspective on the history of the US and Maine Supreme Courts. Thank you, Paul. Love reading your columns.

  5. One of the many benefits offered by your stewardship in providing historical facts to unawareness is the education of the public. In these divided days, where emotions often rule (albeit poorly), more factual awareness is necessary.

    Basing discussion and decisions on facts, history, purpose, need, and sound rationale allows a level of deliberation that continually results in a sustainable solution.

    A debt of gratitude Paul, for the education and information that many (speaking for myself) did not know. It removes the emotional and elevates potential. Thank you!

  6. Paul,

    Doesn’t a change in the number of justices (federal) require either the approval of the president or a 2/3 super majority?

    ‘Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives’

  7. Another scintillating story! Informative and factual, a constant in your writings. Thank you very much for the way you deliver your words.

  8. Hi FT Bryan:

    In response to your question – a good one: The constitution does not set or fix the number of justices and leaves that up to Congress. So, since no constitutional amendment is required it is done by amending the statute, which can be done by majority. Of course if the president vetoes it then it would take 2/3rds.

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