I continue not to understand this on the merits or as strategy. A five-year-old could pinpoint the substantive problem with it: If you add a few justices to the Court to tilt it your way ideologically, the other party will respond in kind as soon as it has the chance. Democrats recently received a painful lesson about what happens when you start playing with norms surrounding judicial nominees, like removing the filibuster for lower-court nominations. Strange that they’d want to play with another one, especially one that even Franklin Roosevelt couldn’t break without public condemnation.
I don’t get it strategically as a motivator for 2020 turnout either. Democrats’ Court-related motives to turn out next fall are already abundant. They haven’t put a new justice on SCOTUS in nearly a decade, they’re spoiling for revenge for Merrick Garland, they’re disgusted by Brett Kavanaugh and Republican defenses of him, they’re terrified of Ruth Bader Ginsburg’s delicate health. Lose Ginsburg’s seat to a conservative and it could be 25 years before Democrats have a majority again. It’s Republican voters who may need a little goosing to get excited about the Supreme Court in 2020. Trump’s already appointed as many justices as any president since Reagan. He’s filled, and continues to fill, the ranks of lower federal courts with young conservative appointees. Losing the chance to appoint Ginsburg’s successor would hurt but we’ll still have a right-leaning Court even if that seat goes to a Democrat.
GOPers obviously want to keep their judicial momentum going but the difference between the right and left on this issue is the difference between a man who’s just finished a big meal and a man who hasn’t eaten for a week each eyeing a piece of cake. They both want it. But one needs it.
Possibly the only thing that could spook the right into matching the left’s desperation to control the Court at this point, in fact, is … the prospect of Democrats trying to tilt the balance of power from right to left in one fell swoop, shattering a norm that not even Trump has challenged. So here’s big dummy Eric Holder handing righties a reason to fear precisely that in a talk at Yale a few days ago:
The comments came during a discussion Holder held with the Yale Law National Security Group. There was no recording of the event and only a snippet of what Holder said was tweeted out publicly. But a spokesman for Holder confirmed to The Daily Beast that he did embrace the idea of court-packing.
“In response to a question, Attorney General Holder said that given the unfairness, unprecedented obstruction, and disregard of historical precedent by Mitch McConnell and Senate Republicans, when Democrats retake the majority they should consider expanding the Supreme Court to restore adherence to previously accepted norms for judicial nominations,” said spokesman Patrick Rodenbush…
“More and more Democrats are becoming convinced that we cannot resign ourselves to the third branch of government being captive to partisan Republican forces for the next 30 years,” said Brian Fallon, executive director of the progressive group Demand Justice. “Any progressive reforms that a Democratic president would pursue in 2021 would come under threat from the Supreme Court. Accepting the status quo on this issue is not going to fly and there is becoming a consensus that some type of reform needs to happen.”
I can’t find video of what Holder said, which is too bad as it would have made for a great GOP attack ad next year. That’s okay, though — one 2020 candidate, Pete Buttigieg, has already affirmed that this idea should be on the table while others, especially those like Elizabeth Warren whose chances depend on the left, will surely fart out some vague approving noises about it as the primaries roll on. This will be a sort of litmus test, less strictly ideological than a test of fortitude and resolve. Are you willing to fight fight fight and do whatever it takes to advance this progressive revolution? Yes, the candidates will say. Of course I will! And then the issue will quietly disappear before the general election.
Just like the chitchat right now about reparations, in fact.
Two further points. One: The size of the Court isn’t set in the Constitution so it could be expanded without an amendment, by simple legislation. But no Court-packing legislation is passing the Senate without 60 votes, needless to say, and no Republican is voting yes on a Dem-led Court-packing scheme under any circumstances. If Schumer wants to explode this norm, he’ll first have to explode the norm that allows the Senate minority to block legislation via filibusters. If he does, that will also be used against him and his party in the future when circumstances allow, to their great misfortune.
Two: The one thing that might force the Democratic nominee to take this idea semi-seriously next year is if a Democratic Supreme Court seat were to become vacant in the spring and McConnell refused to follow his own Garland rule of holding the seat open until after the election, to let voters decide which presidential nominee will fill it. If he and Trump filled the vacancy immediately, Democrats would be so outraged by the hypocrisy that Court-packing might move from fringey litmus test to a semi-serious proposal about the bare necessities to restore equitable treatment in SCOTUS appointments. Although, ironically, that might make McConnell even more likely to follow through on filling the vacancy: As I said, a strong Court-packing push by Dems will benefit Republican turnout more on the margins than it will Democratic turnout. McConnell might get to have his cake appointment-wise and eat it too.