Democrats Should Pack the Court — Republicans Did it First

With the passing of Justice Ruth Bader Ginsburg in mid-September and the successful rush by Republicans to confirm solidly conservative Amy Coney Barrett as a replacement, the idea of court-packing – raising the number of Supreme Court justices from 9 – has been increasingly discussed in liberal and Democratic circles. Republicans, like Sen. Ted Cruz, have assailed Democrats for these proposals, deeming them attacks on the integrity of our nation. Such critiques of court-packing ignore the ways in which Republican lawmakers have already violated the existing conventions regarding federal appointments, many of which they themselves set. Accordingly, Democrats’ desires to reform the Supreme Court should be viewed as a defensive response to preserve the fairness of the Court rather than an offensive attack to “corrupt” it.

If Republicans truly abhor proposals from Democrats to reform the Court, they must stop manipulating the political system to unfairly fill the court with conservative justices. When Sen. Mitch McConnell blocked the confirmation hearing of Merrick Garland in 2016, he was backed by Republicans in citing the ongoing presidential election process to contend that “Democrats shouldn’t rob voters” of the chance to pick a justice. McConnell then violated this standard by announcing just hours after Ginsburg’s death on September 18 that “President Trump’s nominee will receive a vote on the floor of the United States Senate” despite Election Day being only two months away. Surely enough, Barrett was confirmed on October 26, just over a week before the November 3 elections.

Similarly, the “nuclear option,” which lowered the required votes for a Supreme Court nominee to be confirmed from 60 to 50, has allowed both of President Trump’s controversial nominees — Neil Gorsuch and Brett Kavanaugh —  to squeeze by a divided Senate. A common conservative defense is to blame Democrats for first adopting the nuclear option and therefore justify Republicans’ use of it to establish the current makeup of the Court. However, when Democrats established the rule in 2013, it specifically excluded the Supreme Court — it was McConnell who made the rule apply to confirmations for Supreme Court justices in 2017, which was conveniently used to narrowly confirm the staunchly conservative Gorsuch by a vote of 54 to 45 weeks later.

Though unethical, one can strongly argue that McConnell and the Republicans would be foolish not to have taken advantage of their power in the Senate; Republicans claim Democrats would have done the same thing if they were in power. Whether or not Democrats would do the same in their position, it must be noted that court-packing as an idea — which has traditionally been viewed as a means to make the Court more liberal-leaning — has increased in popularity after Republicans reversed their 2016 Merrick Garland stance and vowed to move forward with Amy Coney Barrett’s confirmation hearing during an election year. Furthermore, though Democratic presidents have historically appointed fewer justices to the Court since the New Deal era than Republicans have, the Democratic Party’s platform has never embraced or called for court-packing as a party issue or strategy to gain power. Thus, painting Democrats as threatening tyranny, as an October 5 editorial from the National Review does, is simply inaccurate. 

Moreover, if Barrett was not confirmed by the Senate, it would have actually been in the best interest of Democrats (and the nation) to avoid court-packing should they earn a majority in both houses of Congress after November. Firstly, the disagreement over the measure in the Democratic base could have resulted in lost time and efforts that could have been better spent on addressing the pressing health, racial, and economic crises our country is facing. Additionally, unprovoked court-packing risks concretizing a precedent that parties can merely do away with hundred-year-old precedents to benefit themselves — a vicious cycle of partisan amendments to the significant statutes concerning the structure of our democracy is the last thing that an already-polarized nation needs.

However, Barrett’s confirmation was cataclysmic, completely shattering any remaining pretense of respect for precedents and thrusting the integrity of the Supreme Court to the long list of the nation’s most pressing issues. To put it differently, Republicans’ packing of the Court has left Democrats with no other option there must be significant judicial reform. That includes court-packing as well as the removal of the nuclear option and lifetime appointments (the latter of which both Republican-appointed Chief Justice John Roberts and Democrat-appointed Justice Stephen Breyer support).

Done fairly and as a response to Republican manipulation of the existing conventions surrounding judicial nominations, court-packing would provide a respectability to the Court that a polarized judiciary has been eating away at for the past two decades. Done in good faith, court-packing could ward off an impending conservative tyranny. Ultimately, Democrats’ goal should not be to cram the court with judges that will be sympathetic to Democratic causes, but to restore an order to the court that has been missing for the past two decades to aspire for that elusive state of true judicial independence.

Image Credit: “Supreme Court” by Mark Fischer is licensed under CC BY-SA 2.0

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