There's a lot going on this week. I've put on my blog some information about funding legal services for the asylum-seeking immigrants at the Mexican-American border and on the struggle for marijuana legalization in New York.
Now let me turn to the Court. Donald Trump and Mitch McConnell are making noises about approving new Supreme Court judges as soon as possible, regardless of whether it is an election year, the Republican excuse for not taking up the Garland nomination.
By the way, the Constitution does not call them “justices.” That strikes me as a title that should be earned and too many members of this Court have not earned the right to claim that they do justice. The difference between judging and doing justice matters. So the issue is whether we can stop appointing people to perpetrate injustice under the robes of Supreme Court judges?
Democrats do not control the Senate. According to Art. II, sec. 2, the U.S. Senate has the constitutional power to reject the president’s appointment of “Judges of the Supreme Court” because they must be made “by and with the Advice and Consent of the Senate.” The House does not have that power.
Case closed? Is the House out of the game? Absolutely not because it does not have to fund new appointments. Once a judge is approved, the House loses its power to eliminate or diminish the salary of Supreme Court judges. Article III, sec. 1 reads in relevant part that “The Judges … shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.”
But the constitutional provision refers to judges after they have been confirmed and are holding their offices as judges. Before that happens, many changes can take place, in the number of judges on the Court and in the terms of their compensation. The Constitution does not specify the number of judges, and the Supreme Court has varied from five to ten. Nor does the Constitution specify the compensation of judges except that it may not be diminished during their term in office.
The House of Representatives actually gets regular cracks at those apples. Aside from proposing changes in the laws, perhaps the most significant is in the budget process. Another clause of the Constitution, Article I, section 9, par. 7, reads in part, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
So in any new appropriations bill, the House would have to go along to provide for any compensation whatever for a new Supreme Court judge. Beyond that, of course, there is the possibility of all kinds of negotiations in which the House might condition appropriations on having its will with respect to the size of the Court.
The real issues are whether the House is willing to play hardball, and whether the public which has been offended by the treatment of Supreme Court nominations by McConnell, the Senate and the president, would back them up. That is a political judgment and advantages might go either way, but it is not a constitutional issue. The House is not a rug to be stepped on; it is a necessary player in judicial politics.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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