Of the many things that Democrats dislike about Donald Trump’s presidency, one issue probably sits on the top of the pyramid — his Supreme Court choices. All three of them irritate Democrats for different reasons, and they are determined to get some payback under President Joe Biden. Hence the bill filed last week to expand the Supreme Court from nine justices to 13. Democrats would love to see four clones of Ruth Bader Ginsburg added to the court.
It probably won’t happen, but it’s hard to argue that Democrats don’t have some legitimate reasons to feel that Trump “packed” the court in his own way.
First then Sen. Majority Leader Mitch McConnell refused to let President Obama fill a court vacancy in the last year of his term. There was no precedent for such a move, and if there was, it certainly should have applied to the vacancy that occurred in the last month before Trump sought re-election. Republicans ignored the arguments they made four years ago and rammed through Amy Coney Barrett’s nomination — all the more galling to Democrats because this very conservative justice replaced the revered Ginsburg.
Oh, and in between there was Justice Brett Kavanaugh, confirmed despite allegations that he tried to rape a girl at a party when he was in high school. His accuser, Christine Blasey Ford, insisted that the assault occurred and indeed traumatized her for many years. But her corroborating proof was thin, and many were uneasy about holding high school actions against an adult. Democrats also looked bad in 2019 when the tables were turned, when presidential nominee Joe Biden was accused of assaulting a woman as a senator. This time, it was Democrats arguing that proof was murky — and awkwardly retreating from their earlier pledge to “believe all women.”
The sting from those defeats lingers in the hearts of many Democrats, but a 13-member court would make a lot of bad memories go away. There is no constitutional limit on the size of the court, and the number of justices has changed seven times over our history. But several problems stand in the way of this scheme to tilt the scales of justice.
If this change occurred, a future Republican president and Congress could just add two more justices and throw the majority back to conservatives. Should that happen, a future Democratic president and Congress would be tempted to add two more to retaliate for that move. And on and on. Voters don’t like this kind of gamesmanship even if politicians inside the Beltway relish it.
President Franklin Roosevelt also tried to “pack” the court with additional justices in the 1930s, and that effort was struck down. It just has a bad historical feel to it now, just as nine justices feels about right — not too small or large but still allowing for diversity.
For these reasons, even many Democrats don’t want to expand the court, including House Speaker Nancy Pelosi and President Biden himself. It’s unlikely that this bill could pass the House, with just a six-vote Democratic majority, much less the 50-50 Senate where just one Democratic defection dooms it.
Oh, and did you know that liberal justice Steven Breyer recently gave a speech at Harvard throwing cold water on the idea? And did you also know that at 82, Breyer is the oldest justice? Democrats are terrified that they will lose the Senate in 2022 — a very real possibility — and that Breyer could pass away in the third or fourth year of Biden’s term.
If Biden gets a court vacancy in his third year, he could probably fill it with a very moderate Democrat, though that’s not even certain. If the vacancy occurred in his fourth year, McConnell would trot out the same argument and say that the opening should be filled by the next president — which he of course hopes would be a Republican.
It’s a circus in a town known for melodrama and posturing. The whole thing could go many different ways, but one thing is certain: The sure-fire way to get your party’s justices on the court is to prevail in elections, both for Senate and the presidency. If Democrats do that often enough in the near future, they will restore the court to a balance they prefer, and they can do it with nine justices. In politics, as in sports, winning cures everything.
Thomas Taschinger, TTaschinger@BeaumontEnterprise.com, is the editorial page editor of The Beaumont Enterprise. Follow him on Twitter at @PolliticalTom
