The latest Republican rationalization for refusing to consider President Obama's Supreme Court nominee is that the Court doesn't need nine justices.

And maybe baseball doesn't need nine players in the field.

Responding to a Des Moines Register editorial describing the GOP's refusal to hold hearings for Judge Merrick Garland as "un-American," Iowa Senator Charles Grassley, the chairman of the Judiciary Committee, noted in an oped piece in the paper that the US Supreme Court has had fewer than nine justices in the past. Yes, between 1789 and 1866, Congress willy-nilly shifted the court membership from six to five, to six, to seven, to nine, to 10 to seven justices. Congress ended the nonsense in 1869, and since then Section 28 Title 1 of the U.S. Code has said "The Supreme Court of the United States shall consist of a Chief Justice and eight associate justices..."

This is why vacancies have been routinely filled since then. That changed with the death of conservative Judge Antonin Scalia, and various rationalizations aside, the reason is because Republicans don't want a Democratic president to choose the next justice. While a 4-to-4 deadlock recently benefited unions, Republicans surely hope that an anticipated tie vote will block President Obama's recent executive action protecting four million undocumented immigrants, including children born in the United States, from deportation.

The simple truth is that if either John McCain or Mitt Romney was president now rather than Barack Obama, Republicans would be eager to approve the nominee — perhaps Judge Garland — of either president, not coming up with flimsy, cynical arguments for eight Court justices. The rule of law is of great importance to conservatives — except when it bumps into partisan politics.



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