Court packing: A good or bad idea?
Democrats might beat President Trump at the ballot box in 2020, said Jamelle Bouie in The New York Times, but unless something changes, they’re going to lose to Trump in the courtroom for decades to come. Thanks to the hardball tactics used by Senate Republicans in blocking President Obama’s appointments, Trump has already appointed more than 150 lifetime federal judges and two Supreme Court justices. Most Americans, not incidentally, voted against Trump in 2016. Even if Democrats regain the White House and Senate in future years, his judges will “entrench minority rule” for a generation because they’re almost certain to overturn ambitious progressive legislation. That’s why Democrats “should play hardball back” by expanding the number of federal and Supreme Court justices—yes, packing the courts. All it takes to change the number of federal judges is an act of Congress. We are a democratic republic, “not a judge-ocracy.”
Court packing is a very bad idea, said Jonathan Bernstein in Bloomberg.com. It would inevitably spur Republicans to do the same, with each side expanding the courts whenever they had a majority. What’s left of the judiciary’s legitimacy would be destroyed. Instead of more “constitutional hardball,” we should fix our poisonous judicial politics by adopting term limits, which would lower the stakes by giving each president a specified number of vacancies. Indeed, court packing would destroy our constitutional order, said Kevin Williamson in the National Review. Judges occasionally striking down popular legislation is a feature of our system, not a bug, because the Framers intentionally structured the government to check the excesses of the majority. Federal courts, for example, have repeatedly struck down state laws restricting abortion. “Strange that you never hear progressives complaining” about those rulings.
“The traditional norms of judicial politics have already been shattered,” said Ed Kilgore in NYMag.com. Trump “broke every taboo” by explicitly promising evangelicals judges who would strike down abortion rights. Just the threat of Democratic court packing might do some good, because it could convince Republicans to negotiate a lasting compromise, such as Supreme Court term limits—which are supported by 70 percent of Americans. When Republicans “shriek about court packing, they should be reminded that their own efforts to pack the courts with ideologues have broken the system.”