There would have to be a vote for cloture and that takes 16 votes split evenly between Democrats and Republicans.
It’s not a simple procedure.
What are you talking about?
At least one of your cites conflates my argument that Congress has the power to size the court with the argument that the court ought to increase in size. Broadly, it’s agreed that the Court could change in size. What the posters disagree with is your claim that the President can do so without a change to statute.
The first cited article is on point to the argument I’m addressing, although it is speculative and (subjectively) unconvincing. I think it’s fair to say that if this is the best you can offer, the argument is indeed not historically or academically well-founded.
I feel I’ve done my duty here, and I think your arguments are likely to continue growing more tenuous as they have through this thread, and so I wish you well.
Wikipedia disagrees:
On November 21, 2013, after many of President Barack Obama’s nominees had been filibustered (most notably, Republicans refused to confirm any nominees to the United States Court of Appeals for the District of Columbia Circuit), Majority Leader Harry Reid raised a point of order that the threshold for invoking cloture on nominations, other than those to the Supreme Court of the United States, is a simple majority. The presiding officer overruled the point of order. The ruling of the chair was overruled by the Senate by a vote of 48–52, with all Republicans, as well as Democratic Senators Carl Levin, Joe Manchin and Mark Pryor, voting in favor of sustaining the decision of the chair.[40] On April 6, 2017, following the filibuster of Neil Gorsuch’s nomination to the Supreme Court of the United States, Majority Leader Mitch McConnell raised a point of order that the 2013 precedent also applied to Supreme Court nominations. The presiding officer overruled the point of order. The ruling of the chair was overturned by the Senate by a vote of 48–52, with all Democrats voting to sustain the decision of the chair. As a result of these two precedents, the threshold for invoking cloture on nominations is now a simple majority.[41]
My bolding. I’ve made no such claim. I’ve already copped to unfortunate wording in the OP, but even so I’ve made no “the President can [change the Court’s size” without a change to statute" claim.
Instead, I’ve attempted to refute what appears to be an ingrained (and false) opinion that the power to change the Court’s size is a function of Congress and no business of the President’s. I would like to see the President take the lead on making the case to Americans that the Court size should be reconciled with the number of Courts of Appeals (currently thirteen). Obviously an updated federal statute would follow if he succeeded.
The three links are not the “best I can offer” but instead the first serious-site three I found that had at least some on-point content. (Some of them contain arguments about other aspects of the Supreme Court such as the view that term limits (independent of age) should be sought, or that age-limits should be imposed, both of which of course would require amendment of the Constitution.)
As I do you.
For those who are interested in the historical foundation of this thread’s premise:
FEDERAL STATUES RELATING TO SIZE:
1789: Judiciary Act of 1789 specifies six Justices (Chief plus five)
1801: JA of 1801 reduces number to five Justices
1807: Seventh Circuit Act of 1807—establishing a seventh Circuit Court means a seventh Justice*
1837: Eighth and Ninth Circuits Acts of 1837—creating two more circuits and therefore two more Justices**
1863: Tenth Circuit Act of 1863—creating a tenth circuit and therefore one more Justice***
1866: Reorganization reduces number of circuit courts from ten to nine, followed by:
1869: JA of 1869 reduces to nine, one for each of nine circuit courts
Note that all of these increases were increases to an odd number of Justices except for the 1863 Act.
This is Wikipedia language but I’ll quote it anyway as it’s succinct:
(My bolding.) Side note: Turley, the advocate for 19 Justices, is known for his right-wing views.
Notable in the language of these statutes is the clear linkage between the number of circuit courts and the ‘correct’ number of Justices.
* SCA of 1807, section 5: “for this purpose there shall be appointed a sixth associate justice, to reside in the seventh circuit, whose duty it shall be, until he is otherwise allotted, to attend the circuit courts of the said seventh circuit, and the supreme court of the United States” [Seventh Circuit Act of 1807 (formally, “An Act establishing Circuit Courts, and abridging the jurisdiction of the district courts in the districts of Kentucky, Tennessee and Ohio”, 2 Stat. 420; 9th Congress, ch. 16; enacted February 24, 1807] Landmark Legislation: Seventh Circuit | Federal Judicial Center
** EANCA of 1837: “the Supreme Court of the United States shall hereafter consist of a chief justice, and eight associate judges, any five of whom shall constitute a quorum; and for this purpose there shall be appointed two additional justices of said court… Hereafter, the districts of Vermont, Connecticut, and New York, shall constitute the second circuit; the district of New Jersey, the eastern and western districts of Pennsylvania, shall constitute the third circuit; the district of Maryland and the district of Delaware shall constitute the fourth circuit; the districts of Virginia and the district of North Carolina shall constitute the fifth circuit; the districts of South Carolina and Georgia shall constitute the sixth circuit; the districts of Ohio, Indiana, Illinois and Michigan, shall constitute the seventh circuit … the districts of Kentucky, east and west Tennessee, and Missouri, shall form and be called the eighth circuit; and the districts of Alabama, the eastern district of Louisiana, the district of Mississippi, and the district of Arkansas, shall form and be called the ninth circuit.” [5 Stat. 176 March 3, 1837] Landmark Legislation: Eighth and Ninth Circuits | Federal Judicial Center
*** TCA of 1863: “the supreme court of the United States shall hereafter consist of a chief justice and nine associate justices, any six of whom shall constitute a quorum; and for this purpose there shall be appointed one additional associate justice of said court, with the like powers, and to take the same oaths, perform the same duties, and be entitled to the same salary, as the other associate justices. The districts of California and Oregon shall constitute the tenth circuit, and the other circuits shall remain as now constituted by law.” [12 Stat. 794 March 3, 1863] Landmark Legislation: Tenth Circuit | Federal Judicial Center
**** Supreme Court of the United States - Wikipedia
.
.
.
@Northern_Piper : thank you for posting those facts.
Maybe some Constitutional Lawyers can chime in. My research was on my cell phone and I can’t readily find it on my laptop. I could be wrong but I believe cloture stops a filibuster but that doesn’t force a straight up vote. It’s a procedure unto it’s own. It involves both party heads plus 7 from each party.
Cloture isn’t in the Constitution, it’s part of the rules of the Senate - a question of parliamentary procedure.
According to Wikipedia, it takes 16 Senators to sign a cloture motion, but the vote on cloture takes at least a majority (for all judicial appointment) or 60 votes (for other business) to invoke cloture and put a time limit on debate. Once cloture is invoked, there’s a time limit put on for speeches, an opportunity for members to amend the basic motion (often referred to as “Amendment-palooza”) and then the question, as amended, is put to the Senate for a simple majority up-or-down vote.
Your reference to “16 Senators” may have had to do with the initial cloture motion, but after that has been introduced, it still takes a vote of the full Senate to invoke cloture. It’s a time-consuming process, according to the current rules, and it sucks up a lot of legislative floor time that the majority party would like to use for other things, so it’s pretty rare for it to get to that point.
ETA: to make this less of a hijack, it’s a pretty good bet that no amount of legislative arm-twisting would get the Republicans in the Senate to not filibuster a bill to increase the size of the Supreme Court - at least not if it would allow the Democratic Party to nominate and approve the Justices therefrom, regardless of how good of an idea in the abstract it might be to do so.
The part about 7 from each party is to expedite a clôture motion, but it’s not needed for every clôture motion.
The general rule is that 16 senators need to sign the motion, but not based on party status. Once it’s presented, the Senate is required to consider the motion on the second calendar day after presentment.
However, if the Senate majority leader, the minority leader, and 7 senators from each party sign the petition, the Senate must consider the motion on the next calendar day following presentment.
Again it’s set out in the Wikipedia article on clôture :
what exactly do you mean by “address the question”? What do you think Biden could do here, even assuming he was interested? Seriously, this is important to this whole stupid conversation. The MOST he could do is make some kind of special petition to congress for them to pass a law changing the number of supreme court justices. Is that what you think his “duty” is?
Let’s say he does this. And then what do you think will happen? Do you really think Congress would do so, after 150 years of having 9 justices. They’ll pass a law expanding the court, and then Biden will nominate justices, and then congress will approve those nominations? All within the next 60 days? Really? This is what you think?
Just so I’m clear @Sherrerd – the overriding important principle for you is that the number of Supreme Court justices equal the number of federal judicial circuits. Is that correct? You would still want this if it doesn’t happen until next year and it’s Trump and a Republican Senate appointing the four additional justices?
I believe that Trump WILL take the opportunity. The history is clear: each time the Court was expanded it was in connection with an expansion of the number of circuit courts.
I’m guessing that Trump’s enablers are quite excited about the prospect of ten right-wing extremists on the Court, who will never again have to pay attention to the three centrist-or-liberal Justices.
I would characterize as ‘a duty’ something that Biden should have done, perhaps when Democrats got control of the Senate. Even if they didn’t have sixty votes the case could have been made even to the less-MAGA Republicans, if Biden had pointed out the historic way that changes in the Court’s size (with the number of Justices being changed repeatedly to match the number of circuit courts) were considered routine and customary. Given, too, Biden’s record of appointing centrist people (Merrick Garland, for instance) to important posts, there might have been ten Republicans who’d have gone along with the scheme.
But he was convinced that he would win a second term unless he did something so supposedly-radical as pointing out the US history on this issue. In the event, he miscalculated.
Now, of course, those ten Republicans are unlikely to go along with a new Judiciary Act. But ‘unlikely’ is not impossible. In the current circumstances there are clearly Republican Senators who are not happy to have Trump asserting dominance over them (with his Cabinet picks etc.). Some don’t like Trump’s stated plan to use the U.S. military on January 21st to carry out whatever he wants done. Maybe ten of them would be willing to go along with having some centrist Justices added to the Court.