Ruth Bader Ginsburg’s death—and Sen. Mitch McConnell’s perfidy—have revived calls for enlarging (“packing”) the Supreme Court to alter its conservative tilt. It’s a bad idea — and there’s a better way to go.
The better way is to restore the Senate rule that required a supermajority of Senators—60—to approve a Supreme Court justice. A Constitutional amendment requiring 75 votes would be even better, insuring that justices had bipartisan support.
Democrats tempted by the court-packing idea should heed to words of RBG herself. “If anything would make the court look partisan,” she said in an NPR interview last year, “it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’ “
But at the moment lots of Democrats aren’t listening to the wise words of their revered justice. They are enraged that McConnell refused to take up Barack Obama’s March 2016 nomination of Merrick Garland on the grounds that Court seats should not be filled in a presidential election year because “the American people should have a voice”—and now (six weeks before the election) McConnell plans to push through Trump’s nominee to replace Ginsburg.
Trump’s pick will give the Court a 6-3 conservative majority. Democrats rightly fear that any number of issues they care about—including possibly who becomes president next year—will be lost. And that for years to come decisions will come down that violate their policies and values. At the worst, the 6-3 Court might uphold the threats to constitutional democracy that Trump might pose if he’s re-elected and feels empowered to continue deeming himself above the law or Congressional accountability, and willing to employ US government agencies to punish enemies and enrich himself.
But that pessimism assumes that the six conservatives would always put their political prejudices above their oath to uphold the Constitution—something that Chief Justice John Roberts says should never happen.
But it will happen if Democrats take the Senate and go through with proposals increasingly being made to enlarge with he Court from nine justices to, say 13, so Joe Biden, if elected, could nominate four justices and produce a liberal Court. And he would need only 50 Senate Democrats to push it through—much as McConnell needs just 50 Republicans now.
Democrats hoped the issue might be moot—for now—if four Republican Senators had been willing to defect from McConnell’s present position and uphold his 2016 rule. But it won’t happen. Only two will defect. Republicans have further politicized the Court by arguing now that approving a nominee of a GOP president in an election year is fine, but not a Democrat’s. Democrats will surely now adopt that rule when they’re in power.
If Trump and McConnell get their way, pressure for packing will surely mount. Biden himself opposes packing—and for the right reasons. “We add three justices—next time around we lose control, they add three justices,” Biden said at a primary debate last October. “We begin to lose any credibility…the court has at all.”
Simply put, the Supreme Court would lose whatever reputation for fair-mindedness it has as one party after the other treated it as one of the spoils of election victory. The judicial branch already has been treated as a political football by both parties. Biden played his part. As chairman of the Senate Judiciary Committee he warned President George H.W. Bush in 1992 that he should not expect the Senate to confirm a Supreme Court nominee he named before that year’s election. (Bush did not get to nominate anyone that year.)
Former Democratic Majority leader Harry Reid advanced the process in 2013 by abolishing the rule that 60 votes were required to approve executive and nominations, though not for the High Court. McConnell, every bit the partisan that Reid was, extended Reid’s action to Supreme Court nominees in 2017 to push through Trump’s first nominee, Neil Gorsuch.
And therein lies a solution to the partisan warfare over judicial nominations that’s become increasingly usual—and would be institutionalized by Court-packing: return to requiring a supermajority of Senators to confirm a Justice—60 votes, or better yet, 75. It would guarantee that Supreme Court nominees had bipartisan support to be confirmed—as used to be the case most of the time until recently. If this were done by Constitutional amendment, it could not be undone again by simple legislative action.
Could it ever happen? Well, it just might, if leaders of both parties finally got it into their heads that one party’s applying raw partisanship to Court nominations only invites payback from the opposition—and that the integrity of the judicial branch is being endangered in the process.
Admittedly, given present political passions, this rational solution is a long shot. But Ruth Bader Ginsburg, Chief Justice Roberts and Joe Biden all would likely support it, And so would the American people, whose respect for the Court is beginning to fray—but is nowhere near the disdain in which Congress is held.
A version of this story has been published by RealClearPolitics.