By Henry Wong

Republican Senators Ted Cruz (R-TX) and John McCain (R-AZ) have said that any Supreme Court nominee made by Hillary Clinton, if elected, would be blocked from confirmation. This ninth spot has been open since the death of conservative Justice Antonin Scalia in February. The Constitution permits justices to serve for life but the possibility of two more vacancies exists for appointments by whoever the next President is, since Justices Ginsburg and Kennedy are in their 80’s.

In March, US Court of Appeals Judge Merrick Garland was nominated by President Obama but the Senate has refused to even have confirmation hearings over the past seven months. At the same time, many Republicans fear that if Hillary Clinton is elected, an even more liberal candidate would be nominated thus calling for Garland’s confirmation instead.

According to Ted Cruz, “There will be plenty of time for debate on the issue. There is historical precedent for a Supreme Court with fewer justices. Just recently 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.”

This seems to contradict what Justice Sonia Sotomayor said when she commented in Minnesota recently that, “It’s much more difficult for us to do our job if we are not what we’re intended to be – a court of nine . . .” since evenly split rulings can leave the law undecided and justice “administered in an unequal way.”

Historically, there have been times when fewer than nine justices served on the Supreme Court. The Judiciary Act of 1789 originally set the number at six. The current situation is not a first since there have been two times when there was a vacancy for more than two years and six times when there was a vacancy for more than a year. In addition, Justice Harry Blackmun was confirmed after the Senate rejected two nominations made by President Nixon.  The fate of the Supreme Court is in the hands of the Presidential election and its balance will be the new topic of discussion after Election Day.