Victorious Democrats might try to pack court
Ruth Bader Ginsburg was an awesome woman who had an awesome life. Better phrased accolades could be, and have been, expressed.
Some years ago, many urged her to step down and allow then President Obama to nominate a replacement justice, presumably someone younger but with the same liberal persuasions that she admirably possessed. She declined to do so, her abilities undiminished, and with a determination to continue in a role she both enjoyed and discharged with distinction. She put her service to the Supreme Court above political considerations. Good for her; but it was a decision with consequences. Now, she must be replaced.
Republicans will try to do what Democrats would do if they were offered the same circumstances and opportunity. They will attempt to push through whomever Trump nominates to serve on the Supreme Court. Senate Majority Leader Mitch McConnell has already stated that he will bring any Trump nomination to the Senate floor for a vote. C’mon, Chuck Schumer, don’t be coy; admit you’d do the same thing were your positions reversed; we even have earlier statements you’ve made confirming that supposition.
Perhaps the Republicans will succeed, but a 53 to 47 Senate majority offers no guarantees. Some may be swayed by Justice Ginsburg’s hope that no one will be nominated before the election is held and decided. And some will likely be influenced by their own reelection prospects or by their consciences, as, for example, Sen. Susan Collins seems always to be guided.
Democrats will bitterly oppose any Republican attempt to appoint an assuredly conservative person to replace the very liberal Justice Ginsburg. But, let’s suppose the Republicans get the president’s nominee appointed to the Supreme Court.
The presidential election is yet to be decided and there are two possibilities.
If President Trump is reelected he will have gotten the person he wants to replace Justice Ginsburg, and since “to the winner go the spoils,” the appointment will be politically justified. Democrats will still be angered and distraught by the Republican success, but it can, at least, be defended as consistent with the “will of the people.” That may not prove a compelling argument to disappointed
Democrats, especially if Trump again fails to win the popular vote.
But, if former Vice President Joe Biden becomes the next president of the United States, then the prior appointment of Trump’s nominee to the Supreme Court will be viewed as illegitimate, even if the process was in full accord with the Constitution.
The successful appointment of an “originalist” judge to the Supreme Court will be viewed by many as giving the
court a six to three conservative advantage in deciding the law of the land; a most deplorable outcome if you are a supporter of the Democratic Party. In today’s bitterly divided country, only few will accept Chief Justice Roberts’s denial of political bias in the rendering of court decisions.
Suppose in addition to winning the presidency, the Democratic Party also recaptures the Senate and retains the House. If Biden wins by a large margin it is a possibility. Democrats may then do what I suspect Republicans in a similar position would also contemplate doing. They can eliminate the filibuster wherever it interferes with majority rule and, once done, can add four or more justices to the Supreme Court. ASupreme Court with 13 or 14 members will provide the majority they aspire to achieve.
There is nothing in Articles II or III of the Constitution that prohibits such an action and House and Senate rules or traditions can easily be overturned by a determined majority.
The number of justices sitting on the Supreme Court has changed over the years, starting with six in 1789, going up to ten in 1863, and settling on nine in 1869. Only once, and that time amidst confusion and doubt, were justices added to the court for political gain. Many years later, President Franklin Roosevelt, frustrated with decisions thwarting his ambitions, tried to stack the court in 1936. Despite overwhelming Democratic majorities in both the House and Senate, he was unsuccessful. Perhaps, he would have pursued his goal further had not the court judiciously changed its opinion on key elements of his legislative program.
Employing the above-outlined plan, Democrats wouldn’t need to worry about Republican success in appointing a Justice Ginsburg replacement. Speaker Pelosi and Sen. Schumer would have the means to undo any Republican success and provide us with what would surely become a classic case of the end justifying the means.
What stands in their way? Definitionally, the stare decisis principle, of being guided by precedent, only guides legal decisions. Only analogously and imperfectly, can it be applied to Congress. And, in those esteemed chambers, there is no Tevye singing “Tradition, tradition …”