Ruth Bader Ginsburg’s death -- and Mitch McConnell’s situational ethics -- have revived calls for enlarging (“packing”) the Supreme Court to alter its potential 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 60 senators – – to approve a Supreme Court justice. A constitutional amendment requiring a two-thirds majority (67 votes) would be even better, ensuring that all new justices would have 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.' "
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 President Obama’s March 2016 nomination of Merrick Garland on the grounds that seats on the high court should not be filled in a presidential election year. “The American people should have a voice,” he said then. Now, six weeks before another election, he wants to mute the voters’ voice and push through President Trump’s nominee to replace Ginsburg.
Although the evolution of justices’ thinking often evolves over time, this gambit is intended to give the Supreme Court a potential 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 legal decisions will be handed down that violate their policies and values.
But it will happen if Democrats take the Senate in November and follow through on threats increasingly being made to enlarge with the court from nine justices to, say, 13, so that a President Joe Biden could create a liberal court.
And he would need only 50 Senate Democrats to push it through -- just as McConnell needs just 50 Republicans now.
The issue would be moot, for now, if four Republican senators decided to abide by McConnell’s own Garland rule and decline to vote for Trump’s nominee this year. So far, two Republicans, moderates Lisa Murkowski and Susan Collins, have declared they will do so.
If Trump and McConnell get their way, pressure for packing will surely mount.
Until quite recently, Biden himself has spoken out against court-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 might name before that year’s election. (Bush did not get to nominate anyone that year.)
Former Democratic Majority Leader Harry Reid escalated the hyper-partisan arms race in 2013 by abolishing the rule that 60 votes were required to approve executive and some judicial nominations, though not for the high court.
McConnell, every bit as partisan as Reid, extended Reid’s action to Supreme Court nominees in 2017 to push through Trump’s selection of Neil Gorsuch.
This recent history itself suggests the best solution to curbing the partisan warfare over judicial nominations that’s become commonplace, and which would be institutionalized by court-packing: return to the old ways when a filibuster would derail an unpopular judge. In this case, not by invoking the filibuster, but by specifically requiring a supermajority of senators to confirm a justice: 60 votes or, better yet, 67 – or even 75, which would be three-fourths of the Senate.
This would guarantee that Supreme Court nominees had bipartisan support to be confirmed — as was 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, only if leaders of both parties finally got it into their heads that one party’s applying raw partisanship to Supreme 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, it’s a long shot. But Ruth Bader Ginsburg, Chief Justice Roberts and Joe Biden all would likely support it. 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.