No, I haven’t been drinking the Kool-Aid. We – actually President Trump – should give the Dems exactly what they are crying out for. With a twist.
For years, every Supreme Court nomination by a Republican president has been a cat fight. Along with the hissing and fur balls, Democrats have thrown everything in the litter box at every originalist nominee, beginning with Robert Bork. For those too young to remember, Senator Edward Kennedy declared without a shred of evidence, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids...” He was successful at blocking Ronald Reagan’s nomination of a highly qualified jurist to the high court. Prior to this slander, most nominees had been approved with bipartisan majorities.
Following Bork, Republican nominees who were seen as amenable to Democrat goals, such as Anthony Kennedy, David Souter, and John Roberts have been confirmed without severe difficulty. History has proven the Democrats right on these men. But when Clarence Thomas was nominated in July of 1991, Senator Joe Biden (yes, that Joe Biden) led the fight to lynch him with the false Anita Hill allegations. Fortunately for America, Thomas was confirmed, even though it was a near thing. Now we have the prospect of yet another appointment by President Trump, and Trump Derangement Syndrome has found another target.
Let’s ignore all the noise about appointing a Justice with a pending election. It’s simply noise, and depends on whose ox is being gored. The vacancy created by Ruth Bader Ginsburg’s death allows President Trump to nominate a successor, who, if confirmed by the Senate, will assume her seat on the Court. Democrats have no recourse if this happens.
So Cryin’ Chuck Schumer has trumpeted that “when” Biden is elected and the Democrats take the Senate, they should “pack the Court.” Six new seats would be created, to be filled immediately by Biden nominees. This smacks of FDR’s call to expand the Court with his own nominees to get the Court to stop blocking his plans. It was so outrageous then that even FDR’s Democrat Party couldn’t stomach it. Whether Democrats can be that irresponsible now is an open question. Their hatred for the principles in the Constitution is so great that they might actually carry out the threat, ignoring RBG’s own wishes that the number be kept at nine.
There is a body of opinion that having nine justices on the Supreme Court is too small a group. It creates a sort of intellectual divide where historically Anthony Kennedy was the “swing vote” between liberal and conservative blocs. The moment a vacancy appears, this narrow divide throws fuel on the fire between political blocs in the country. If, for example, there were 15 justices, the divide in legal philosophies would be somewhat blurred. The loss of one would be less likely to lead to tears from conservatives and Molotov cocktails from the Left.
Schumer has created an opening for President Trump. And this president has the brass cajones to pick up the gauntlet. Suppose that Trump were to announce that he agreed with Chuck that the Court was too small, and that after his re-election he would be proposing the expansion of the Court to 15, exactly in accordance with Democrat wishes. After all, if it’s good for the Ds, it should be good for the Rs, right?
Their first response would be astonishment. Once the Dems realize they’ve been outfoxed, they’ll scream, laying open their naked partisan ploy. By the way, perhaps McConnell should join the chorus by at a minimum eliminating the double secret filibuster they’ve been using the last few years. He will make them stand up and talk forever if they want to stop a Trump priority. It’s time to beat the Democrats at their own game.
The argument would be basically the one I’ve laid out above. The Court appears too partisan, so an increase in Justices would be a good idea. The cost of their salaries, staff, and office space shouldn’t be a big deal in our bloated Federal government. While we’re at it, perhaps we can split the Ninth Circus in two. But I digress.
Once Schumer realizes he’s been played by a master, it’s time to set up a real change to the Court. I happen to agree with the premise that a larger Court is likely – not guaranteed – to present less of a political circus with every vacancy. The problem is how we get there without a packing scandal.
Adding six seats at once creates an obvious advantage for whoever sits behind the Resolute Desk. So the increase in seats needs to be staggered. If a three year interval between new seats is established, it will be fifteen years before the final size is reached. That means appointments aren’t likely to radically tip the balance of the court very rapidly. Deaths and retirements will continue, and those will play as well. Each change in composition will be less of a red flag to the opposing bulls, and more of a complex tapestry.
We have yet another chance to show how radical the Left is and how reasonable Conservatives are. Every time we shine a light on Democrat demons, we create more loyal Americans. Those Americans will vote to Keep America Great.
Ted Noel MD posts periodically on social media as DoctorTed and @vidzette.