“What if there were five justices selected by Democrats,” presidential candidate Beto O’Rourke explored at a recent Iowa campaign stop, “five justices selected by Republicans, and those ten then pick five more justices independent of those who picked the first ten?”
Beto, meet FDR.
President Franklin Delano Roosevelt tried something similar with the Judicial Procedures Reform Bill of 1937, which would have added six new justices to the nine-justice U.S. Supreme Court. Dubbed “court-packing” at the time, it failed in the Senate, even though FDR’s Democratic Party controlled that chamber.
The gambit may have been the most unpopular action of FDR’s whopping three-plus terms through depression and war. And, as the Washington Post noted, the idea “fell into lengthy disrepute after 1937.”
Enter today’s wildly “woke” Democratic Party.
“We should be talking even about expanding the number of people who serve on the Supreme Court,” former Attorney General Eric Holder has been telling audiences, “if there is a Democratic president and a Congress that would do that.”
Once considered a likely presidential candidate, Holder has announced he will not run — meaning he truly believes in the terrible policies he advocates. You will remember that months ago he made a splash telling Democrats that when Republicans “go low,” Democrats should “kick them.”
“That’s what this new Democratic Party is about,” he added.
Despite the obviousness of this group-interested power grab, “Sens. Kamala Harris, Elizabeth Warren and Kirsten Gillibrand . . . would not rule out expanding the Supreme Court if elected president,” Politico reported. Ditto even for dark horse candidate Pete Buttigieg, mayor of South Bend, Indiana.
“It’s not just about expansion, it’s about depoliticizing the Supreme Court,” Sen. Warren explained . . . with a straight face.
The Constitution establishes an independent judiciary. Beto’s suggested “reform” would scuttle any last shred of independence in interpreting the law, transforming the nation’s highest court into a specifically partisan institution.
Like so many modern federal agencies, it would be designed to represent and protect the two-party power structure.
But this is really an attempt to strike back after previous political losses. “Democrats cannot sit back and accept the status quo of a partisan Republican five-seat majority for the next 30 years,” insists Brian Fallon, a former Hillary Clinton advisor who now heads the group Demand Justice.
As for predicting the next three decades, this hack’s crystal ball may be no more accurate than the computer models used by climate scientists. But there is now, unmistakably, a conservative majority, with those five justices chosen by Republican presidents against four liberal justices chosen by Democrats.
And the Democrats cannot stand it.
Moreover, it can be changed. The number of justices on the High Court has been set at nine for a century and a half. Sure, that’s tradition. But it was set in 1869 by statute; it can be altered by a new statute, passed by a majority vote of both houses of Congress and signed by the president.
If Democrats win the White House in 2020 as well as gain the U.S. Senate, they could then completely remake the SCOTUS. Indeed, that is what they are threatening to do.
They make Republicans seem laggard. After all, during President Trump’s first two years in office, congressional Republicans could have passed a statute, which the president could have signed, allowing for two or three or four — or 124 — more justices.
Can you imagine the wailing and gnashing of teeth?
From Democrats, I mean. And from the mainstream media.
Should Democrats win the next election and re-create the Court, what seems certain is blowback the next time Republicans re-gain control of both the White House and Congress. We would then witness a Supreme Court whiplashed, tit-for-tat, between one partisan political master or the other.
The number of justices should be placed in the Constitution to avoid this very sort of partisan war. I’m not holding my breath, though, because that requires a constitutional amendment, meaning a two-thirds vote of both chambers of Congress and ratification by at least 38 states.
Court-packing, on the other hand, requires nothing more than a simple majority of both houses of Congress and the presidency. Which makes this next election very critical to the future of the judiciary.
“You need to gain power,” Washington Examiner columnist Philip Wegmann reminds, “before you can abuse it.”
So, all this abuse, at least for now, remains a “mere” Democratic political promise.