Democrats don’t need to pack the court
This idea by some Democrats to “pack” the Supreme Court gets me to humming Joe Friday’s old Dragnet tune.
“Dum, de dum dum.”
Oh yeah, it’s that stupid. It’s that short-sighted. It’s that overtly political.
Sen. Edward Markey of Massachusetts says the High Court needs to be re-balanced. His idea of balance is to increase the number of Justices from nine to 13.
Federal statute permits adjusting the number of seats, and it’s happened several times, mostly during and after the Civil War. Of course there were many extraordinary government actions during that critical period of history that we should not repeat today.
A similar move was also dealt a humiliating bi-partisan kiboshing, when then-President Franklin Roosevelt unsuccessfully tried to grow the Court. Of all of FDR’s great ideas and experiments, this certainly wasn’t one of them. Even someone elected four times to the Presidency needed to be shown a little humility.
How did we get here? Well, the Democrats are angry at a couple of stunts Republicans have pulled in the past five years, and they and voters should be, even if the Dems’ solution is as bad or worse than the original GOP transgressions.
When top-conservative Justice Antonin Scalia died in February o2016, about nine months before the next Presidential election and more than 11 months before the next inauguration, then-President Obama nominated Merrick Garland. A Senate confirmation of Garland would have flipped the Court from a 5-4 conservative balance to a 5-4 edge for liberals.
And of course that potential outcome is why Republican Senate Majority Leader Mitch McConnell wouldn’t even allow a hearing, much less a confirmation vote. Republicans whined that it wasn’t right to select a new Justice until after the voters decided who would be the next President. Their hope was that the GOP candidate would prevail over Hillary Clinton. It was a stink-to-high-heaven ploy that had no direct precedent, despite what McConnell and his troops claimed.
They got their wish. The Court stayed at 4-4 until new President Trump nominated conservative Neil Gorsuch, and the Senate confirmed him in April 2017.
In 2020, the Republicans, in a mind-blowing display of hypocrisy, reversed course. After liberal Ruth Bader Ginsberg died in September, a scant seven weeks before Trump’s re-election attempt, he nominated and the Senate confirmed Amy Coney Barrett. No deference at all to the voters this time, who, of course, selected Joe Biden as their new commander-in-chief.
So, yes, the GOP pulled off a pair of putrid moves that should have, but didn’t, cost them control of the Senate in 2016. However, Markey’s idea has the stench of a Massachusetts manure pile, too. So much so that Speaker Nancy Pelosi said she won’t even bring the idea to the House floor. Biden doesn’t seem to favor it, and if it ever did come to a vote, don’t be surprised if a majority of Democrats (and all Republicans) oppose it.
The old proverb “Two wrongs don’t make a right,” applies here. Actually, if Republicans had fought fair in 2016, they could have been congratulated for being both right and consistent that year and in 2020.
Supreme Court choices are mega-important both politically and to the ideological direction of the country. Trump’s insistence on promising to nominate right-wingers loved by ultra-conservative think tanks may have been the No. 1 reason he got elected. And a 6-3 conservative Court will dominate the ideological interpretation of laws for probably at least a couple of more decades, a prospect that concerns and sometimes frightens me.
But the right way, the only way, to change that is for Democrats to keep their powder dry for now, and to campaign and govern like hell so they keep control of the Presidency and the Senate for many years to come. They won’t need to pack the court; they’ll simply replace retiring or deceased conservative Justices with more liberal or moderate ones.
It’s a hard, grueling haul. But it will keep them from doing something incredibly stupid, and out of the political Dragnet.