Eh, why not? All the cool kids are talking about it for 2021, according to Politico, without any apparent worry about what might happen in 2019 and 2020. Several Democratic contenders now say they’ll add seats to the Supreme Court to spite Mitch McConnell over Merrick Garland and what they call unprecedented packing of the federal court.
But what if the current occupant of the White House plays that game first?
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. …
But Democrats say that after Republicans blocked Supreme Court nominee Merrick Garland and other lower court judges during President Barack Obama’s final term only to quickly fill those vacancies, the party needs an equally bruising response.
Never mentioned in this article is a whole lotta context behind the Garland fight, including two separate declarations by Joe Biden and Chuck Schumer about blocking Republican picks in the final year of a presidency, circumstances that never emerged at those times. Miguel Estrada never gets a mention, nor Schumer’s long track record of blocking a number of other judicial appointments from George W. Bush. Democrats can thank themselves for McConnell’s current ease in confirming nominees, a point which Politico does raise — to allow some Senate Democrats to express their regret.
At any rate, contextless or not, this is a very bad idea. As John Hinderaker observed earlier this month, it would create a House of Lords out of the Supreme Court, a peerage controlled by political parties rather than the law. Such a precedent would have no limiting principle except for the need to have an odd number of justices at any one time. That might fit the “liberals’ view” of the function of the court, as John wrote, but it would set off a tit-for-tat action that would immediately get out of hand:
What will happen if a Democratic president packs the court to give it a left-wing majority? For one thing–a fact Democratic activists seem to be overlooking–the next Republican president will engage in his own court-packing, so as to re-create a conservative majority.
So why wait on this terrible idea? Let’s do it now. Donald Trump should announce that he has nominated six justices to the Supreme Court to expand it to 15 seats. With a 53-seat majority in the Senate, Mitch McConnell could get them all confirmed by the end of the summer at the latest.
After all, the best defense is a good offense, right? Thanks to several Democrats who ought to know better, it’s now being seen as a legitimate move. Trump would be foolish to waste that opportunity, would he not?
This is not a Swiftian Modest Proposal-esque satirical suggestion. I’d like to see Trump do it — but not to get those seats added to the Supreme Court. If Trump tries it, Congress would move heaven and earth to block him from succeeding at his court-packing plan, and that would be a bipartisan effort. We’ll have more later on the bipartisan project to curtail the National Emergencies Act after Trump’s border-wall declaration, but this would generation an outrage of an order of multitude higher. Legislation to limit the Supreme Court to nine seats might even pass on unanimous votes, or at least far more than would be needed for a veto override.
That assumes that Trump would veto such a bill. He’d get exactly what he wants — a way to make sure that the current composition of the court endures, plus a strengthening of an institutional norm as his legacy. At the very least, it would expose his potential 2020 challengers as the idiots and blowhards they are for floating this idea in the first place, and that is in itself priceless. Especially for Trump in 2020.