In a vintage return to his confrontational style, Sen. Ted Cruz indicated that Republicans could seek to block a Democratic president from filling the vacant Supreme Court seat indefinitely.
After staking his endorsement of Donald Trump on a list of potential conservative Supreme Court nominees, Cruz said on Wednesday that there is precedent to limiting the Supreme Court to just eight justices. Last week, Cruz's colleague, Sen. Jeff Flake (R-Ariz.), suggested the GOP should confirm President Barack Obama's nominee, Merrick Garland, to avoid having to swallow a more liberal nominee under Hillary Clinton.
As is his nature, Cruz took a harder line when asked how Republicans would handle a potential Clinton nominee while campaigning in Colorado for Darryl Glenn, a longshot candidate for the Senate.
“There will be plenty of time for debate on that issue ... There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice [Stephen] 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 said, in remarks first reported by the Washington Post.
Cruz was unlikely to vote for any Democratic nominee given his conservative ideology, but his remarks could indicate a broader shift within the GOP to halt Democrats from shifting the court's balance to the left. Sen. John McCain (R-Ariz.) said earlier this month the GOP would be "united" in blocking a Clinton appointment, remarks he later softened.
An indefinite GOP blockade of a Supreme Court nominee would almost certainly lead to an erosion in the Senate's super-majority requirement. Senate Minority Leader Harry Reid has already suggested lowering the bar for Supreme Court nominee from 60 votes to a simple majority. Under Reid, Democrats changed the Senate rules to allow all nominees but Supreme Court appointments to be approved by a majority vote.
"We need to treat it like the constitutional crisis it will be if Democrats don't take back the Senate majority," Reid said on Wednesday night in an email to members of the liberal Progressive Change Campaign Committee. "The Supreme Court could dwindle to 7, then maybe 6, Justices. It would turn our Justice system and our democracy on its head. The Founding Fathers would roll over in their graves."
Republicans have blocked Garland from even having hearings for more than seven months, and Senate Majority Leader Mitch McConnell (R-Ky.) has said the Senate will not confirm Garland in post-election lame duck. In his last availablity on Capitol Hill before the election, McConnell refused to entertain the possibility that the Senate may be forced to entertain a more liberal judge next year, though there may be enough centrist Republicans and those deferential to presidential prerogative to confirm a justice like Garland.
Later Wednesday, Justice Clarence Thomas lamented that the broken confirmation process was a sign of larger problems. Speaking to the Heritage Foundation to mark 25 years on the Supreme Court, Thomas did not cite the Garland blockade but noted a decline in civil behavior.
"We have decided," he said according to the Associated Press, "that rather than confront disagreements, we'll just simply annihilate the person who disagrees with me. I don't think that's going to work in a republic, in a civil society."