As Republicans are ramming through a Supreme Court nominee just before the election, they are also attacking Democratic presidential nominee Senator Biden for not saying whether he will “pack the court.” The irony of this seems to be lost on them, many in the media, and most of the public.
Republicans are claiming that increasing the size of the Supreme Court (aka “packing the court”) would be “the absolute biggest power grab in the history of our country,” when in fact their packing of the federal courts at all levels with right-wing judges for the last four years and beyond is a far bigger power grab. [1]
Rushing through the nomination of Judge Barrett threatens to complete the delegitimization of the Supreme Court, making it clear it is not an impartial arbitrator of the law, but a fully politicized institution. Senator McConnell and his Republican colleagues in the Senate blocked the appointment of a centrist judge nominated by President Obama, Merrick Garland, for ten months, solely for political purposes. Now, they are ramming through an extreme, right-wing nominee in a matter of weeks, solely for political purposes. And closer to an election than has ever been done before.
If Barrett is confirmed, 15 of the last 19 Supreme Court appointments will have been made by Republican Presidents. Furthermore, five of the nine justices will have been appointed by Presidents who lost the popular vote and they will also have been confirmed by the votes of Senators who represent less than half of the American population. [2]
The Supreme Court has had nine justices since 1869, but its size is not specified in the Constitution. Republicans changed the size of the Court three times between 1863 and 1869 to give appointments to their Presidents and deny them to the opposition. [3] Furthermore, Republicans announced in 2016 that they would not fill any Supreme Court seats with nominees of Hillary Clinton (if she were elected), thereby effectively shrinking the size of the Court. Moreover, in 2013, Republicans proposed shrinking the number of justices on the D.C. Appellate Court, the second most important appellate court in the country, from 11 to 8 to lock in a conservative majority and prevent President Obama from appointing judges to the court. [4]
The packing-the-court issue is far bigger than just the Supreme Court. Senator McConnell and the Senate Republicans blocked dozens of Obama’s nominees to other courts, so that there were over 100 vacancies for federal judges when Trump took office. Over 200 federal judges have been confirmed since Trump took office and basically all of them are proponents of the extreme right-wing legal philosophy of the Federalist Society. [5] (More on this is my next post.) Right-wing Republicans have used Federalist Society endorsement as a litmus test for nominees while ignoring input from the American Bar Association, which always used to provide an independent analysis of the qualifications of nominees. [6] Republicans have also intentionally been installing young judges so their lifetime tenures and influence will last as long as possible.
This packing of the federal courts with right-wing justices, which is the result of McConnell and the Republicans breaking the norms of our democratic processes, will benefit Republicans and their wealthy, corporatist backers for a generation or longer. The only remedy for this political corruption, the only way to keep its perpetrators from realizing on-going benefits, is to increase the size of the federal courts, including the Supreme Court. New judges, appointed by Democrats, will rebalance the courts to reflect the interests and well-being of the American public. Furthermore, the federal district and appellate courts have not been enlarged since the late 1970s, despite a 40% growth in population.
It is important for the Democrats to stand up and make it clear that Republicans can’t steal two Supreme Court seats (and dozens of seats on other federal courts) and get away with it. They should couple an increase in the size of the Supreme Court with a proposal for a Constitutional Amendment to set term limits and/or a mandatory retirement age for Supreme Court justices.
By rebalancing the federal courts, Democrats would demonstrate a needed commitment to America’s democratic principles and promises, as well as to economic and social justice.
My next post will discuss the right-wing judicial philosophy called “originalism” to which these Republican judges typically adhere and its implications for economic and social justice.
[1] Richardson, H. C., 10/11/20, “Letters from an American blog post,” (https://heathercoxrichardson.substack.com/p/october-11-2020)
[2] Richardson, H, C., 10/11/20, see above
[3] Starr, P., 9/23/20, “How to rebalance the Supreme Court,” The American Prospect (https://prospect.org/justice/how-to-rebalance-the-supreme-court/)
[4] Kuttner, R., 10/13/20, “Biden needs to give a major speech on court expansion,” The American Prospect (https://prospect.org/politics/biden-speech-supreme-court-expansion-court-packing/)
[5] The Federalist Society for Law and Public Policy Studies, most frequently called the Federalist Society, is an organization of conservatives and libertarians that advocates for a textualist and originalist interpretation of the United States Constitution. (https://en.wikipedia.org/wiki/Federalist_Society)
[6] Heer, J., 10/14/20, “Barrett’s evasions show why expanding the Court is necessary,” The Nation (https://www.thenation.com/article/politics/barrett-confirmation-court-packing/)
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