Send this idea packing
For several months, the left wing of the Democratic Party has been flirting with the idea of increasing the size of the Supreme Court if Democrats gain control of Congress and the presidency in 2020.
The idea of “packing the court” (as President Franklin D. Roosevelt tried to do in the 1930s) has attracted the interest if not necessarily the endorsement of some Democratic presidential hopefuls. Beto O’Rourke has even floated the idea of a 15-member court.
More likely—or less unlikely—a Democratic-controlled Congress would enlarge the court by two seats and a Democratic president would duly fill those vacancies with reliably progressive nominees. That would obliterate the conservative majority secured when President Trump belatedly replaced the late Justice Antonin Scalia with Neil Gorsuch.
Even in its stripped-down form, court packing is an idea the Democrats can accomplish only when they control both the executive and legislative branches. (On Tuesday, Trump said that the court wouldn’t be enlarged on his watch. Thank you, Captain Obvious.)
But court packing is something the Democrats shouldn’t even be talking about. It’s a thoroughly bad idea, and not just because it might set off a perpetual-motion machine of tit-for-tat expansions every time power in Washington changes hands.
Court packing would further politicize a Supreme Court that is already viewed as a partisan institution, and it would violate the norm that change in the court’s membership is accomplished gradually through the replacement of individual members, not by ideologically engineered expansion.
Part of what makes respectful consideration of Supreme Court nominations a norm is the recognition that federal judges aren’t tools of the presidents who appoint them. Otherwise, justices appointed by the same president always would agree.
This was the point Chief Justice John G. Roberts Jr. was trying to make when he reminded President Trump last year that “we do not have Obama judges or Trump judges, Bush judges or Clinton judges.”
Trump disagrees, but so do Democrats who believe that the Scalia seat was “stolen” from Obama—as if Garland was just another presidential patronage appointee who would do his benefactor’s bidding.
Returning the confirmation process for Supreme Court nominees to a semblance of bipartisanship and comity won’t be easy, and Republicans deserve a disproportionate share of the blame for the current situation. But it will be even harder to restore those values if the Democrats make partisan court packing part of their platform.