I haven’t heard this one yet from any big-name Democrats but give it time. With presidential primaries approaching, the left’s dumbest, most destructive ideas will inevitably migrate up the food chain. (“Abolish ICE!”) In modern American politics, turds float.
There’s been plenty of buzz about it online, where so many of those turds originate, since Kennedy’s announcement. Google “pack the court” and the hits will start rolling in — Vice, HuffPost, Jacobin, plus a smattering of lesser-known sites. The plan has some “respectable” support too, of course. Whenever a truly terrible idea is swirling among progressives, there’s always an academic somewhere willing to defend it. Same here:
If the Democratic Party wins the 2020 election, it will have won the most votes in 7 out of the 8 previous national elections. Adding six members to create a fifteen-member Court, which would still have 5 GOP-appointed members, is actually incredibly generous to the Republicans.
— Ian Samuel (@isamuel) June 29, 2018
Samuel’s on the faculty at Harvard Law. More:
Thread: A president under investigation for impeachment has never appointed a Justice. Not Nixon, not Clinton, not Andrew Johnson. Never.
Democrats should make clear that if the GOP destroys this tradition, they will expand the Court to 15 in 2021 without filibuster.
— Jed Shugerman (@jedshug) June 30, 2018
Shugerman’s on the faculty at Fordham Law. (“Under investigation for impeachment”?) Kudos to both for aiming to shoot the moon by calling for a 15-seat Court instead of the 11-seater commonly being recommended this week. If you’re going to nuke what little is left of comity in Supreme Court nominations by embracing one of the few ideas FDR ever supported that was toxically unpopular even in his own time, might as well think big.
Dan McLaughlin and Ken White spot a flaw in the blueprint:
HOW MORONIC DO YOU HAVE TO BE TO FLOAT COURT PACKING AND TRY TO BUILD A PHILOSOPHICAL CASE FOR IT WHEN THE OTHER SIDE IS IN POWER
WHAT IS WRONG WITH THESE PEOPLE
— WeaponizedHat (@Popehat) June 30, 2018
Calling for Court-packing when it’s *the other party* that’s momentarily in position to follow through — and that’s favored to build on its Senate majority this fall — is a strange impulse. It’s understandable as a tantrum borne of frustration that the Court’s about to swing further right but bananas as a semi-serious idea, especially with a loose cannon like Trump in charge. A President Romney or McCain wouldn’t have entertained the idea of Court-packing for an instant. President Trump, though? All McConnell would need to tell him is that Democrats don’t think he has the balls to do it. He’ll be tweeting about it tomorrow.
Another flaw: The argument for lefty Court-packing is built on the idea that Mitch McConnell and the GOP will stop at n-o-t-h-i-n-g to impose their will on the courts. Having taken the supposedly illegitimate step of holding open the Scalia seat for an election which everyone believed Hillary Clinton would win, Republicans have now proved that they’ll fight with any weapon to hand to keep the Court conservative, up to and including reading from the Necronomicon if need be. Liberals simply have no choice but to fight as dirty as possible to claw back some power. (Every cutthroat hyperpartisan nob on either side believes he has “no choice” but to be a cutthroat nob.) If that means Court-packing, that’s what it means. But … if the GOP is willing to do anything to control the courts, by definition it would be willing to further pack the Court itself after Democrats did it. Dems go to 11 justices in 2021, the GOP goes to 13 in 2025, and on and on. Tit for tat. Court-packing would give the left a temporary advantage at best. You would think they’d have learned a hard lesson already from Harry Reid’s nuking of the filibuster in 2013 that dramatic breaks with procedural precedent have a way of coming back to haunt you.
One more point. Is this Court-packing scenario taking place in a country where there are no Democrats elected to the Senate from red states? Because that’s what it’ll take to make it happen. You can pack the Court via simple legislation by having Congress expand the number of justices (famously, there’s nothing in the Constitution that requires there to be nine) but any red-state Dem who voted for that would be public enemy number one back home. Electorally, it would be tantamount to a retirement announcement. They’d risk a backlash to be good soldiers for their party by voting to confirm a Democratic Court nominee, even if their constituents were grumpy about it, but voting to pack the Court to wrest the majority from Republicans would be an order of magnitude more transgressive than that. If Democrats are half-serious about this, they’ll need not just 50 votes but 50 votes from safe seats. That’s probably impossible.
And all of this assumes, of course, that the legislative filibuster — which even McConnell won’t touch, despite heavy pressure from Trump — is nuked first. The GOP would obviously filibuster any attempt by a Democratic majority to expand the Court via statute unless that power is taken away from them. Schumer would have to break momentously with not just one major tradition but two to get Court-packing done.
Why not test the left’s interest in the idea, though? I like both of these proposals as examples of legislative trolling, especially Ed’s:
He’d do it to get all the Dems on record voting against. Not a bad move actually. https://t.co/eAhP7zEs3K
— Randy Barnett (@RandyEBarnett) June 29, 2018
Here's a proposal. Have Senate Republicans propose a bill that limits the Supreme Court to nine justices, and dare Democrats to filibuster it. In late October. Should be a clarifying experience. https://t.co/o48CeBeXNx
— Ed Morrissey (@EdMorrissey) June 30, 2018
Democrats would have no problem voting no on Barnett’s bill now and then voting yes in 2021 with a Democratic president and Senate in control. This is power politics, after all, just like the filibuster is. I’d be curious to see what the vote looked like on Ed’s bill, though, especially if McConnell really did push it right before the midterms. Probably something like 55-45, with all of the red-state Dems voting with the GOP in favor of locking in nine justices and the rest of the caucus voting no to appease the left. Thanks to the filibuster, the bill would fail. But the dilemma for red-state Democrats would remain if Court-packing was still a thing when the next Democratic president took power. How do you support that and hold your Senate seat when a majority of your constituents vote Republican? You don’t. And as that fact dawned on the party, they’d inevitably abandon the Court-packing scheme and get excited instead about filling some Court seats themselves as vacancies inevitably opened up. This is a tantrum, nothing more, by a wing that’s frightened about the Court’s constitutional future.