It’s good to see that some people have come to terms with the fact that Brett Kavanaugh is now an Associate Justice on the Supreme Court. While others are talking about impeachment or harassment campaigns, Aaron Blake of the Washington Post is looking at another remedy. It’s getting near time to consider having the Democrats pack the court and swing it from a 5-4 conservative majority to a 6-5 liberal slant.
It’s not unreasonable to think the destination here is packing the court.
Court-packing has come up occasionally throughout the years as a workaround for one side or the other to wage something of a hostile takeover of the court. Rather than waiting for the right justices to retire or die when the right president is in office, the theory goes, a party can just expand the court enough to install the requisite justices and tip the scales to its side. Enacting term limits for justices would require a constitutional amendment and take years to pan out; packing the court is quicker and requires only a regular old act of Congress.
For obvious reasons, the idea has gained some new currency with liberals, for whom it could help in taking a 5-to-4 conservative court and flipping it to 6-to-5 liberal one. Michael Avenatti has said it should be a litmus test issue for any 2020 Democratic presidential candidate.
There are, to put it mildly, a few hitches in this plan, some of which Blake freely admits and others he seems to willfully ignore. The first and biggest hurdle is that this could only be done through an act of Congress. (The author admits to this one.) The Democrats would need to take control of the White House, the House of Representatives and a sixty seat majority in the Senate. It could be a simple majority if the last vestiges of the filibuster fall, which is not out of the question at all.
What Blake fails to mention is that it’s not sufficient to simply gain these majorities. You would need to whip up the votes of every single Democrat to support the plan, as well as a Democratic President willing to go along. Given the frightening downstream possibilities of such a move, what are the odds that they would all be willing to hand over that kind of power to the GOP when they next retake control?
The unspoken issue in this article is the public reaction to such abject hypocrisy. The entire premise here is that Brett Kavanaugh is “too partisan” and he’s presumably going to be joining up with four other conservative justices who are “too partisan” to render legitimate decisions. But the solution, using Blake’s own words, would result in, “taking a 5-to-4 conservative court and flipping it to 6-to-5 liberal one.”
So a court which reliably votes 5-4 in a conservative direction is flawed, but one which reliably votes 6-5 for a liberal agenda would be… fair and impartial? Anyone who can make that statement with a straight face should get out of the journalism trade and go run for office because that sort of bare mendacity is generally best found in campaign literature.
The court is flawed in some ways because it’s composed of fallible human beings, much like the rest of the government. But it’s been chugging along with nine justices (most of the time) in the best way we should reasonably expect. I’m not happy with all of their decisions. Nobody I know is. But this is no way to fix it. I previously discussed how we could end up with no people on the court if the new rules demand control of both the Senate and the White House to confirm anyone. This vision of the future could see a court with twenty or thirty people on it. Do you honestly think that’s an improvement?