Will 2020 Democrats Pack the Supreme Court?

We recently published an article called, “If Democrats Were Smart (they’re not).” That might be used as what journalists call a “standing head”—that is, a headline that can be used over and over.

In this case, we’re talking about the current buzz among Democrats of “packing the court,” as FDR attempted to do (and failed).

Such talk could hardly be dumber at a time when Republicans control the Administrative Branch and the Senate (which confirms nominees—when it feels like it). Yet, more than one Democratic presidential candidate is currently suggesting exactly that.

Sens. Kamala Harris, Elizabeth Warren and Kirsten Gillibrand told POLITICO they would not rule out expanding the Supreme Court if elected president, showcasing a new level of interest in the Democratic field on an issue that has until recently remained on the fringes of debate.

The surprising openness from White House hopefuls along with other prominent Senate Democrats to making sweeping changes — from adding seats to the high court to imposing term limits on judges and more — comes as the party is eager to chip away at the GOP’s growing advantage in the courts.

The idea is a matter of payback as Kirsten Gillibrand says Neil Gorsuch is “illegitimate,” since Merrick Garland should have been confirmed, instead, almost a year before the end of Barack Obama’s term as president. And some Republicans said they’d refuse to confirm a Justice if Hillary Clinton would have been elected. So instead of “packing” the court, Republicans had planned to “unpack” the court to continue to block Democratic-chosen nominees.

Republicans flirted with the idea of blocking Hillary Clinton from filling the vacancy left by Antonin Scalia’s 2016 death even if she won. Sen. Ted Cruz (R-Texas) said then that there is “historical precedent for a Supreme Court with fewer justices.”. . .

Ezra Levin, co-founder of Indivisible, added: “Any Democratic presidential candidate who is serious about implementing a progressive agenda has to seriously consider appointing new justices to unpack the courts.”

We also had an article about Cruz’ plan on our pages.

The conservative site, Red State, says the talk of packing the Court is not serious, but is rather, a fundraising ploy, just as Republicans have used the Court as a way to “print money” for decades.

Fundraising might have more to do with this.. . .

Conservatives have used the Supreme Court strategy for YEARS in both Presidental and Senate races to great effect. This issue might have been the motivating factor for people on the fence about Trump in 2016 to vote for him in places like Michigan, Wisconsin, and Pennsylvania. This looks more like the Dems have caught up to an issue that can move their base to the polls.

Red State goes on to say it won’t happen. . .

a snowball’s chance in hell of amending the Constitution to alter the Article III branch.

However, Article III does not state the number of court members, according to the Supreme Court’s official site, so an Amendment would not be necessary.

The Supreme Court consists of the Chief Justice of the United States and such number of Associate Justices as may be fixed by Congress. The number of Associate Justices is currently fixed at eight (28 U. S. C. §1).

Wikipedia notes that the number has bounced around through history—decided by Congress.

Article III of the United States Constitution does not specify the number of justices. The Judiciary Act of 1789 called for the appointment of six “judges”. Although an 1801 act would have reduced the size of the court to five members upon its next vacancy, an 1802 act promptly negated the 1801 act, legally restoring the court’s size to six members before any such vacancy occurred. As the nation’s boundaries grew, Congress added justices to correspond with the growing number of judicial circuits: seven in 1807, nine in 1837, and ten in 1863.

In 1866, at the behest of Chief Justice Chase, Congress passed an act providing that the next three justices to retire would not be replaced, which would thin the bench to seven justices by attrition. Consequently, one seat was removed in 1866 and a second in 1867. In 1869, however, the Circuit Judges Act returned the number of justices to nine, where it has since remained.

In 1937, FDR, frustrated by an obstructionist court that wouldn’t allow him the tools he thought he needed to defeat the Great Depression, attempted the “court-packing plan” of increasing the Supreme Court to as many as 15 Justices. Congress did not go along. However, since Roosevelt ignored Washington’s example, and ran for president four times, he ended up naming a solid majority by 1941.

Breitbart says that what happens to the court will depend on next year’s election.

It remains uncertain what, if anything, Democrats will do in an effort to correct the problems they see in the Supreme Court. Time, and the results of 2020’s already contentious race to challenge President Trump, will tell.

The real problem with the Court is that, frankly, it’s full of political hacks. The Founders foresaw the Court as being an impartial check-and-balance, with the integrity to rule honestly. Today—not so much. Send any issue to the court, and before they hear a word, in most cases, it’s obvious how it will be decided, even being able to tell which Justices will vote which way.

The minority party used to have some say in blocking Supreme Court Justices it thought were dangerous. Not anymore, as noted by Red State.

Senate Majority Whip John Cornyn of Texas said resistance to the nominee by Democrats, or others, would be futile.

“They can’t block it. There used not to be filibusters of judges until the George W. Bush presidency, and now all the filibuster activity and precedents have been overruled, so we are looking at 51 to confirm or 50 plus the vice president. I’m optimistic we’ll be able to get this done,” Cornyn said

So, even if 49 Senators are adamantly opposed to a nominee–too bad. That’s hardly fertile soil for statesmanship and justice. The approval of Brett Kavanaugh was a historical low point of selecting and approving someone who made it clear in his hearings that he would vote from a strictly partisan viewpoint. This writer would like to see a super-majority (67 votes) required so that we wouldn’t have a court whose majority is a rubber stamp for a president of the same party—regardless of party.

In 2016, during the Obama Administration, this writer suggested that an equal number from each party in the Senate Judicial Committee should recommend the list from which the President could choose. That would be a recipe for prudent jurisprudence.

As it is now, a president consults political extremists for suggestions, and as long as that president has the “loyalty” of 51 Senators, political hacks from one party, or the other, are all we’re going to get. Sad.