Expand the Court

Republicans must be getting nervous that Dems are not only going to win big next month but will also wipe out years of GOP plots and schemes by adding more justices to the Supreme Court. They are demanding that Joe Biden explain whether he will “pack” the court or not. Wingnut columnists like Hugh Hewitt are blubbering with outrage at the very idea.

Joe Biden isn’t saying, possibly because he’s not sure himself what he will do. I suspect he’d much rather appoint Justice Ginsburg’s replacement. And, anyway, he would need a Democratic Senate majority to pull off adding more justices to the Court. No point getting ahead of himself.

But the outraged Republicans need to look to themselves. Back in 2016 they were seriously considering reducing the number of justices to eight so that Hillary Clinton couldn’t replace Justice Scalia. Nina Totenberg reported for NPR on November 3, 2016:

With just days until the election, some Senate Republicans are suggesting that when it comes to the Supreme Court, eight is enough. Eight justices, that is.

For the first time, some Senate Republicans are saying that if Hillary Clinton is elected, the GOP should prevent anyone she nominates from being confirmed to fill the current court vacancy, or any future vacancy. …

… Senate Republican leader Mitch McConnell has not gone so far as to embrace a permanent blockade if Clinton is elected, but he set in motion the idea back in February.

Hours after the death of Justice Antonin Scalia was announced, McConnell issued a statement declaring that Republicans, who currently control the Senate, would block action on any Obama nominee.

You know the rest of that story.

Even professional wimp Ruth Marcus thinks that the Dems are justified in thinking about adding justices.

Republicans stole one seat when they refused to let President Barack Obama fill a vacancy created nine months before the 2016 election. Now they are poised to steal another, rushing through President Trump’s nominee with Election Day less than a month away.

If Democrats, in response, are entertaining the radical idea of expanding the size of the court, it’s hard to blame them; Republicans have stocked the court with one and soon two justices whose seats they were not entitled to fill. This is slow-motion court-packing in plain sight.

And it isn’t just the Supreme Court; it’s all manner of federal courts. According to Pew Research, almost a quarter of all federal judges in the U.S. are Trump appointees. This came about because Senate Republicans blocked many Obama nominations, giving “a raft of federal vacancies” to Trump. And then Mitch and the gang went into hyperdrive to ram through the nomination of anyone with a law degree who was young, nuts enough to please the Federalist Society, and breathing. Qualifications were not a consideration.

The purpose is clear: With enough hard-right judges on the bench, progressive policies can still be blocked even if Republicans lose Congress and the White House. This puts environmental protection and the future of the planet, voting rights, health care reform, reproductive rights, economic justice, all manner of equal protections, etc., in jeopardy for the next forty years. What Congress and the White House enact, the courts can nullify.

Seth Masket, a professor of political science and director of the Center on American Politics at the University of Denver, wrote in WaPo:

Before the end of the year, Amy Coney Barrett will probably be sworn in as a Supreme Court justice — and she may serve for decades. She will have been appointed by an impeached president who lost the popular vote in 2016 and may well continue in office after losing it again in 2020. She will almost certainly be approved by senators representing less than 45 percent of the American population.

Our nation is moving even deeper into minority rule: The House aside, the U.S. government is controlled by the less popular party in a polarized two-party system. We may call this unfair, but that would trivialize the problem. It is entirely permissible under the Constitution, and it is dangerous. When the majority of a nation’s citizens can’t get its candidates elected or its preferred policies passed, the government’s legitimacy is compromised and destabilizing pressure begins to build.

The Electoral College, two senators from each state regardless of population, and political gerrymandering to favor Republicans in House races means that Republicans can take take the White House and control Congress while earning fewer votes than Democrats. See, for example, Democrats got millions more votes – so how did Republicans win the Senate?

See also How the Minority Wins by Vann R. Newkirk II at The Atlantic. Very basically, this tells the story of how the Republicans, a few years back, began to reflect on the changing demographics of the nation and wrestled with the problem of being the party of white men. Their response was not to expand their appeal to other voters but find ways to win with a minority — gerrymandering, voter suppression, sympathetic judges.

Seth Masket continues,

When well more than half the country votes for one result — over and over — and continues to get another, the situation is unsustainable. This is how a government loses its legitimacy. Governments worldwide facing legitimacy crises have been faced with struggling to govern, as we saw in the Philippines under Ferdinand Marcos, or brutally cracking down on protests, as we saw in Egypt under Hosni Mubarak and continue to see under Abdel Fatah al-Sissi. It’s an ugly situation, and the United States is not immune.

“Protest and unrest are a predictable outcome when a population thinks the political system is completely unresponsive to its needs,” Masket writes. Ironically, even though Republicans claim to be the ones who want law and order, keeping them in power just escalates unrest. Tyranny by a minority is not sustainable, and it’s not democracy. (No wonder Mike Lee doesn’t like democracy.)

I’m saying that for the good of the country, if the Democrats can take back the Senate and White House they must not let the court situation stand. If Amy Barrett is seated they must add more justices to the Supreme Court, and I’m saying at least four, not just two. Two would still give us a six-five conservative majority.

People are concerned that this would just begin a court-packing war, and Republicans will add more judges when they take the government back. That’s why voting rights and other pro-democracy reforms have to be a priority for the next Democratic Congress. Then, unless they pull back from right-wing extremism, they’ll have a harder time taking the government back.

Also, Jacob Hale Russell, an assistant professor of law at Rutgers, recently argued in Time that there need to be 27 justices on the Supreme Court. I’ll let you read his entire argument for how he arrived at the number 27, but his basic argument is that with more justices it takes away the impact of the one to four appointments most presidents make.

And since all federal judges serve lifetime appointments, per the Constitution, I say add more judges to other courts also, as needed.

Will Joe Biden go along with this? I do not know. He may not know, either. He’s not a revolutionary sort of guy but is more comfortable cruising down the middle of the mainstream. But I believe, I hope, that if all our election hopes come to pass and Barrett is on the Court, that there will be enough pro-court-expanding sentiment among Democrats to persuade him to act.

Amy Barrett’s confirmation hearings start tomorrow. See also E.J. Dionne, The GOP is lying its way toward expanding the Supreme Court’s conservative majority.

The Supreme Court in 1894, a very conservative crew.

 

4 thoughts on “Expand the Court

  1. OT – If…  When… WHEN we win:

    Make sure you've already invested in fainting-couches and Kleenex tissues, folks, then buckle-up your seat belts, it's going to be a very bumpy half-decade! 

    Back to today's subject:  HELL YES, PACK THE COURTS!

    The RepubliKKKLANS have been playing cutesy with our Constitution and its implied intents practically forever.  And lately, especially regarding the courts.  

    I suspect that after 4 years of total and gross, gross incompetence by the tRUMP Maladministratioin, and threats and attacks on them,  I believe that even our cowardly, compliant, and complicit MSM might actually side with us libtards – for the first time since the "Dead's" Bob Weir cut his hair – on issues like the courts and health care.

    I sure hope so, since it's been the MSM that's afraid to tell "we the people" the REAL situation in this country, and that is that our wealth disparity is so enirmous, that there may be thoughts of revolution brewing.

    I believe that a century from now, the 2020's and 2030's here in America may look like the 1910's throughout the 1930's in Europe.

    I hope not, since my niece – I'm her Godfather – just had her first child!  A boy, weighing-in at 8 pounds.  I'M A…  A…  A grand-uncle?  A great-uncle?  A WHATEVER UNCLE!!! 

    YAY!!!!!

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  2. "

     The Judiciary Act of 1789 established the first Supreme Court, with six Justices. In 1801, President John Adams and a lame-duck Federalist Congress passed the Judiciary Act of 1801, which reduced the Court to five Justices in an attempt to limit incoming President Thomas Jefferson’s appointments. Jefferson and his Democratic-Republicans soon repealed that act, putting the Court back to six Justices. Then, in 1807, Jefferson and Congress added a seventh Justice when Congress added a seventh federal court circuit.

    In early 1837, President Andrew Jackson was able to add two additional Justices after Congress expanded the number of federal circuit court districts. Under different circumstances, Congress created the 10th Circuit in 1863 during the Civil War, and the Court briefly had 10 Justices."

    From https://constitutioncenter.org/blog/packing-the-supreme-court-explained

    I see an argument to increase the size of the court to twelve – the number of circuit courts now. An even number of seats would initially only create a 6-6 balance BUT Breyer is 82. (Next oldest is Thomas at 72.) Liberals would soon have a 7-5 majority shifting to an 8-4 majority within a decade. 

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  3. That having only nine justices is somehow sacrosanct is another idea involving the court that hypocritical republicans recently did not respect: 

    If Clinton Wins, Republicans Suggest Shrinking Size of Supreme Court

    For the first time, some Senate Republicans are saying that if Hillary Clinton is elected, the GOP should prevent anyone she nominates from being confirmed to fill the current court vacancy, or any future vacancy.

    https://www.npr.org/2016/11/03/500560120/senate-republicans-could-block-potential-clinton-supreme-court-nominees

    That republicans violate every norm and tradition when it comes to the courts (and damn near everything else), showing themselves to be complete hypocrites whose collective word is worthless, in stealing one nominee from Obama and depriving the voters of selecting another, to then turn around and whine about "court packing."  And of course, much of the media is helpfully pushing the narrative, all designed to cow democrats into accepting this chicanery under the guise of maintaining traditions and essentially doing nothing to doom this country to essentially a feral, feudal state for decades to come because, that's "fair."  

    After the VP debate Jake Tapper talked about Harris avoiding the question of "court packing."  The term itself is a GOP talking point attack language, and yet here's the media picking up the cudgel for them.  Tapper goes on to say he understands why democrats won't want to answer that question.  But that didn't stop him from bullying a Biden surrogate yesterday in attempting to get her to answer it, now calling the avoidance of it, something he previously admitted he understood, to now be "bizarre." 

    I hope Schumer meant it when he said everything is on the table, including "court reform" if the dems win the senate and the white house, which I believe they will.  Apparently the republicans do to, otherwise they wouldn't be screeching about "court packing" right now.  

    Democrats must stop allowing the GOP to set phony "norms" that are only used to their political advantage, and then cow them into now responding in kind to keep that advantage.

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