ARI SHAPIRO, HOST:
Republicans in the Senate have already broken the record for holding up a Supreme Court nominee. Now some of them are suggesting they may extend that record indefinitely. Key GOP senators say if Hillary Clinton is elected, the party should prevent anyone she nominates from being confirmed. That would leave the court with only eight justices, even fewer if more retire or die. NPR legal affairs correspondent Nina Totenberg is here. Hi, Nina.
NINA TOTENBERG, BYLINE: Hi, Ari.
SHAPIRO: Is this just political rhetoric, or is it real?
TOTENBERG: Well, in the heat of a campaign in which Republicans are trying to motivate their base to get out the vote, it's real. Of course it could backfire, too (laughter). It could make Republicans look like irresponsible, petty political obstructionists.
SHAPIRO: After months of delay on Merrick Garland, the man who President Obama nominated to fill the vacancy left by Justice Scalia, this seems like a new twist - the idea that anyone Hillary Clinton might nominate should be blocked. Who exactly is saying they might do this?
TOTENBERG: Well, as of today, there are three Republican senators who said directly that they would consider not filling the current Supreme Court vacancy at all. Senator John McCain was the first. A couple of weeks ago, he said that if Clinton is elected, quote, "I promise you that Republicans will be united against any Supreme Court nominee that Clinton would put up." And it was a statement his press secretary later tried to soften, but he hasn't said anything more.
Since then, North Carolina Senator Richard Burr made a pledge similar to McCain's while other Republican senators have dodged and weaved on the question. Marco Rubio, John Cornyn, the No. 2 Republican - they say, well, you know, not a blanket blockade, but I wouldn't vote for anybody who she might put up (laughter). That's basically what they're saying. I don't know if they really mean it.
Senator Ted Cruz has upped the ante, suggesting there is nothing sacrosanct about having nine justices, and for support, he pointed to a statement made by Justice Stephen Breyer during an interview in which Breyer noted that the court historically functioned with as few as six justices.
SHAPIRO: Is there anything sacrosanct about having nine justices on the court, and has Justice Breyer had anything to say about this?
TOTENBERG: On Breyer, he's said nothing publicly, but friends say he was mortified to see his historical reference used for political purposes. It is true that the number of justices fluctuated in the early days of the republic, but we've lived with a nine justice Supreme Court since that number was established by law almost 150 years ago.
And indeed when President Franklin Roosevelt tried to expand that number with his infamous court-packing plan, he suffered a major, major political defeat.
SHAPIRO: And just to remind listeners what brought us to this point, this pretty extraordinary suggestion by some Republican senators comes after a pretty extraordinary nine months of delays on filling the current Supreme Court vacancy.
TOTENBERG: Yep. Right after Scalia died, the Senate majority leader, Republican Mitch McConnell, said, we're not confirming anybody until after the election. The next president gets the pick. Weeks later, President Obama nominated somebody he thought was a compromise candidate, Merrick Garland, the guy that Republicans always said was an acceptable Democratic pick.
It didn't work. The blockade continued, and Merrick Garland this summer broke the record set by Justice Louis Brandeis in 1916, a century ago, for the longest wait by a nominee to the court. Brandeis waited 125 days from nomination confirmation, much of the opposition based on his Jewish faith. Garland is now at 232 days and counting.
SHAPIRO: Now, this whole conversation about whether the court could be left at eight members indefinitely depends on the idea that Hillary Clinton wins the presidency and the Republicans retain control of the Senate, right?
TOTENBERG: Correct. If Trump wins, this conversation we're having - it's moot. If she wins and the Democrats take control of the Senate, they most likely would change the current Senate rule as they did earlier for lower court judges, and then any Supreme Court nominee could be confirmed by a simple majority vote instead of the 60 votes required to break a filibuster.
SHAPIRO: We're talking about a potential eight-member court, but there could well be more vacancies - right? - seven, six members.
TOTENBERG: Yeah, indeed there could be. Two justices are 80 or older, and one is 78. Have any justices other than Breyer talked about how the court is functioning with only eight members? Justices Kagan, Sotomayor and Ginsburg, all Democratic appointees, have made remarks suggesting that the longer this goes on, the more problematic it is for resolving legal questions nationally.
Justice Clarence Thomas, the court's most conservative member, said in an interview last week, quote, "this city is broken in some ways. We have decided that rather than confront the disagreements and differences of opinion, we'll simply annihilate the person who disagrees with us." He expressed concern that, quote, "we're undermining our institutions, and the day is going to come when we need the institutions and the integrity of the institutions."
SHAPIRO: NPR's Nina Totenberg, thanks a lot.
TOTENBERG: Thank you, Ari.
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