The Horrifying Consequences of ‘Packing the Court’

Brenna Lewis - 25 Sep 2020

To fill the vacancy left on the U.S. Supreme Court by the late Justice Ruth Bader Ginsburg President Donald Trump will announce his nomination on Saturday, September 26. Judge Amy Coney Barret is considered to be the front-runner. Democrats have threatened to shake up the system with a plan to ‘pack the court’ should President Trump and Senate leaders act on their Constitutional authority, promising payback for what happened during President Obama’s term. But let’s set the record straight.

Democrats have been incensed about President Trump’s nominations to the U.S. Supreme Court since before he was elected. When President Barack Obama nominated Judge Merrick Garland to replace the late Justice Antonin Scalia in 2016, the Republican-controlled Senate did not move forward, preferring to wait until the presidential election. At that time, with a lame duck President who had lost control of the Senate, the thinking was to wait for the next president (whom many believe would be Hillary Clinton) to make a pick.

The process DID work. The President, then Obama, made a choice, and the Senate responded with the decision to wait to see who might win the election.

Though in the minority, Democrats have expressed outrage over a “stolen seat.” But the Constitution allows the Senate to set their agenda for the court.

The recent fighting is vicious. Senate Majority Leader Mitch McConnell on September 21 reminded Americans that Democrats “are lining up… to proclaim the third time will be the charm” after already using “every conceivable dirty trick” during the confirmation process of Gorsuch and Kavanaugh. Referencing Kavanugh’s process, McConnell warned that Democrats “appear to be readying an even more appalling sequel.”

While speaking to reporters on September 22, Minority Leader Chuck Schumer, also referencing Gorsuch claimed that with voting on a yet to be announced female nominee, “the Republican majority will have stolen two Supreme Court seats, using completely contradictory rationales.” Using further hyperbolic. Schumer on Tuesday also claimed McConnell “has defiled the Senate” and “may very well destroy it.”

Omniously, Schumer warned “everything is on the table,” and that “my colleagues know America needs some changing.” If that’s not a sign Democrats plan to pack the Court, it’s hard to say what is. “We can’t have business as usual when Republicans are destroying the institution as they have done.” Wouldn’t Democrats enacting this plan Democrats “destroying the institution?” Hopefully voters only have to wonder, and then turn it into a reason to vote.

The Democratically controlled House is also moving to take further action. Reps. Ro Khanna from California, Joe Kennedy III of Massachusetts and Don Meyer of Virginia are introducing a bill on Tuesday which would change lifetime appointments of Supreme Court justices to 18 years. The bill addresses Constitutional concerns because justices would rotate between lower courts after that 18 years.

One historical example is when Democratic President Franklin D. Roosevelt attempted to pack the Court with the Judicial Procedures Reform Bill of 1937, in order to earn more favorable rulings on the New Deal. Of the legislation which didn’t pass, notes that “the Supreme Court justices went public in their opposition to it.” Barbara A. Perry, director of presidential studies at the University of Virginia’s Miller Center, spoke to public opposition.

“Congress and the people viewed FDR’s ill-considered proposal as an undemocratic power grab,” she said. “It was never realistic,” about the likelihood of passing. “Roosevelt badly miscalculated reverence for the Court and its independence from an overreaching president.”

The idea of court packing was part of the 2020 primary election. An analysis by Axios most recently updated in October 2019, also placed Biden in the ‘No’ category. Biden said “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.” Vice-presidential candidate Kamala Harris was included in the ‘Yes,’ category. Politico quoted her saying, “We are on the verge of a crisis of confidence in the Supreme Court. We have to take this challenge head on, and everything is on the table to do that.”

Unlike Trump, Biden has not released any such list and does not appear to do so. Biden has said little about his plans for the Court, besides nominating a black woman, and that nominees will “respect to foundational precedents like… Roe v. Wade. He has yet to take a stance on packing the Court. Nevertheless, Harris’ views must be considered, as well as her past harsh questioning towards judicial nominees for their Catholic faith and pro-life views. It can thus rightly be feared that she will continue to support court packing, if not even more so than she did.

Harris’ radical commitment to abortion, and imposing her views on others, cannot be underscored. She does not merely go after judicial nominees, but is fiercely committed to Roe v. Wade and Doe v. Bolton. The Biden/Harris campaign has called for codifying Roe on its campaign website, and Harris has sponsored the Women’s Health Protection Act.

Why the desperation for Democrats to pack the Court? One could argue they fear they cannot bring about favorable decisions to them through the present means.

In the House, Republican Rep. Jim Jordan of Ohio on Tuesday announced his resolution against court packing. “Any attempt to increase the number of Justices of the Supreme Court of the United States or ‘pack the court’ would undermine our democratic institutions and destroy the credibility of our nation’s highest court,” his resolution read.

If FDR was ultimately unable to enact court packing, what makes today’s Democrats think that they can or should? One could easily point to their hatred of President Trump, as well as unyielding commitment to upholding Roe. Such petty political motivations should concern all Americans.

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