The Arizona Republic

Before GOP complains about court packing ...

- Laurie Roberts Columnist Arizona Republic USA TODAY NETWORK

Well, you knew this was coming. A few Senate Democrats are now floating the ridiculous idea of expanding the nation’s highest court to 13 should they win in November.

Sometimes I really do wonder whether they want Joe Biden to win.

“Nothing is off the table,” Senate Minority Leader Chuck Schumer said on Saturday, just a day after Justice Ruth Bader Ginsburg died and set off a Republican scramble to fill her seat before the election.

By Monday, Sen. Martha McSally’s campaign was howling because Democrat Mark Kelly had not yet ruled out the idea, which Team McSally views as “upending the third branch of government.”

“His silence is tacit consent for the Democrats’ plan to destroy the high court,” the McSally campaign said in a statement posted to the campaign’s website.

Before McSally has a meltdown about Democrats packing the court, she might want to check her hypocrisy meter.

McSally was appointed to that Senate seat she holds by Republican Gov. Doug Ducey, a guy who knows all about packing courts.

Return with me now to 2016.

Ducey and the GOP-run state Legislatur­e were still smarting over a 2013 Arizona Supreme Court ruling that the state for years had been illegally underfundi­ng Arizona’s public schools.

It took nearly three years of stalemate before the schools finally got a portion of what the courts said they were owed.

Meanwhile, Ducey, a politician with ambitions of moving up, had just gotten national accolades in conservati­ve circles for his first state Supreme Court appointmen­t: Clint Bolick, vice president for litigation at the (Koch-supported) Goldwater Institute.

Suddenly, Ducey decided what the state really needed was a court filled with more of his appointees. So he proposed expanding the state Supreme Court from five to seven justices.

Never mind that we were (and still are) woefully short of front-line judges in the state’s superior courts.

Or that the Supreme Court’s chief justice said there was no need to expand the state’s highest court based upon population or caseloads.

Ducey insisted that we needed an expanded court to ensure “swift justice” and he even offered to sweeten the court’s budget by nearly $10 million if the Supreme Court would back off its opposition.

Democrats quickly called it what it was: blackmail and a blatant move by Ducey to pack the state’s highest court with his own appointees.

“There’s absolutely no caseload reason to add Supreme Court judges, the only reason to do it is so the governor can stack the Supreme Court with

his picks,” Democratic Sen. Katie Hobbs, who now is secretary of state, said at the time.

Republican Rep. J.D. Mesnard of Chandler, who shepherded Ducey’s bill through the Legislatur­e, acknowledg­ed as much.

“If the shoe were on the other foot, I’ll just candidly say if there were a different person appointing, I might feel less comfortabl­e,” he said, during a Senate hearing.

So the Republican­s spent $1 million to expand the state Supreme Court — solving a problem that to this day remains unidentifi­ed by, well, anyone — and today, five of the court’s seven appointees are Ducey appointees.

I’ll leave it to others to decide whether justice is more “swift” or perhaps just more to Ducey’s liking. (I have a relative on that court and thus, a conflict.)

Meanwhile, we can easily identify the problem in Washington.

Republican­s are running scared, hoping to cement a 6-3 conservati­ve majority on the court before voters cast their ballots on Nov. 3.

They are deathly afraid of what those voters will say. So afraid, in fact, that they don’t mind looking like hypocrites as they attempt to explain why an Obama appointee nominated 11 months before an election should not be considered but a Trump appointee nominated five weeks before an election should be rushed onto the bench.

A few furious Democrats are already talking about retaliatio­n, moving the court to the left via expansion should they win the presidency and control of the Senate.

“Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year,” Sen. Ed Markey, D-Mass., tweeted on Friday. “If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”

“Mitch McConnell believes that this fight is over. What Mitch McConnell does not understand is this fight has just begun,” said Sen. Elizabeth Warren, D-Mass, who previously has said she is open to the idea.

Several other Democratic senators who ran for president said earlier this year that they, too, were open to the idea of expanding the court. They include Sens. Cory Booker of New Jersey, Kirsten Gillibrand of New York, Amy Klobuchar of Minnesota, and Kamala Harris of California.

Predictabl­y, Sen. Kyrsten Sinema hasn’t taken a public stand. She should, to put a stop to this court packing nonsense now, before it gets wings.

Kelly, meanwhile, initially ducked the question.

“The Senate should be focused on passing urgently needed coronaviru­s relief for Arizonans — something they’ve pushed off for months — not rushing a vote on a lifetime nomination to the Supreme Court or issuing hypothetic­al threats about what will happen if the vacancy is filled,” Kelly said in a statement provided to reporters.

Hours later, Kelly’s spokesman told The Arizona Republic that Kelly opposes efforts to expand the court.

Biden, meanwhile, previously has dismissed the idea, though on Monday he sidesteppe­d a question about whether he would support expanding the court.

“I would not get into court packing,” Biden said during one of the Democratic debates. “We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibilit­y the court has at all.”

Kind of like the credibilit­y of the United States Senate.

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