4 Steps To Undo Republican Court Packing
We need more than just a couple of liberal Justices
There is a lot of talk about “court-packing” by adding seats to the Supreme Court. That sounds like a good, quick solution to the problem of an overly conservative judiciary, but it’s not enough, in my opinion. Adding personnel to the top court in America won’t solve the bigger problems we have in the judiciary.
It’s important to remember that the lower courts have also been manipulated and need rebalancing. Moreover, the confirmation process requires reform. Mitch McConnell turned it into a power struggle between the Executive and Legislative branches and we need dramatic measures to make sure that changes.
The death of Justice Ruth Bader Ginsburg — and the unseemly haste with which the President and Senate are replacing her — begs us to examine how we put judges on the federal courts. Or, rather, how we don’t put them on the courts if the Senate leadership doesn’t want to do so. Over the past eight years, Senate Republicans have turned the procedure for confirming judges into a tool for installing ideological bias in the courts, even going to far as to subvert the President’s Constitutional right to appoint judges.
Senate Majority Leader Mitch McConnell openly admits that he blocked President Obama’s nominees. He refused to consider appointments and left more than 100 vacancies on the courts at the end of Obama’s term.
Once McConnell had a new president who appointed judges more to his taste, he re-started the confirmation process. As a result, the federal judiciary holds more than 200 Trump appointees. That’s more than one-quarter of the judiciary. Nearly a dozen of Trump’s appointees have been rated unqualified for their jobs, according to the American Bar Association. Senate Republicans swept them into service regardless. Conservative views mattered more than competence.
No judicial manipulation was as blatant as what McConnell did with the nomination of Merrick Garland. Garland was named to replace the deceased Justice Antonin Scalia in 2016. Citing the upcoming election as a barrier, the Majority Leader never even invited the nominee to meet with Senators, much less conduct the official hearing process. Instead, he waited for the inauguration of a new Republican President. Had Democrat Hillary Clinton been elected, McConnell and other Republicans had considered not filling the seat at all. They would accept a depleted judiciary before they would accept a liberal one.
McConnell could not have behaved more differently when Justice Ginsburg died this year. Despite the looming election — in which people are actively voting — McConnell broadcast his intent to replace her expeditiously. The White House announced her replacement before the Justice was even laid to rest. Confirmation began immediately afterward. Nominee Amy Barrett will join the hundreds of conservative judges McConnell fast-tracked through the conformation process since 2017.
The fact that one Senator can hijack judicial confirmations highlights a significant flaw in the process. McConnell’s open refusal to confirm Obama’s nominees and his haste to fill vacancies under President Trump is Senatorial malpractice. Something needs to change to bring regular order back to judicial confirmations.
If I were in charge of setting reforms, I would insist on four changes:
- Pass legislation mandating a confirmation vote for all federal judicial nominees: At the moment, the Senate holds “advise and consent” power for all nominees. That process has been abused over the past eight years. There needs to be a delineated process with consequences to restore fairness. I suggest a law mandating that the Senate vote on appointees within 60 days of nomination. Failure to vote results in automatic confirmation.
- Add two seats to every federal court: Once the Senate is legally bound to fill judicial vacancies, we need to create a process to rebalance the courts. By adding two seats to every court, we create a process for the sitting president to add to the judiciary thoughtfully. In the name of electoral oversight, this process would not happen all at once. There would be an 8-year schedule for adding seats. This timeline ensures that voters have the option to elect a new president in the middle of the process rather than creating a glut of new judges appointed by one person.
- Mandatory retirement age for all federal judge: Lifetime appointments made sense when Americans’ average lifespan was 44 years. With people living to double that age now, “lifetime” results in judges serving for decades. No individual should have that level of power over that many generations of people. Judges should have to retire at the age of 67, the same age that full Social Security benefits kick in. A set retirement age ensures fresh perspectives at regular intervals.
- Mandatory recusal rules: There should never be a time when a judge rules on a case involving the people who appointed and confirmed him or her. Judges should be prohibited from ruling on staff, appointees, or family members of the President and Senators to whom they owe their job. Politicians should not be creating a judicial safety net for themselves and their associates.
The problem, of course, is that neither party wants to relinquish the tools of minority power. Not one Republican has opposed McConnell’s court-manipulating tactics because they approve of both the goals and the outcomes. And Democrats, while shouting outrage to the skies, are probably taking notes on how to hamstring a Republican administration in the future.
The need for judicial reform is clear. The steps to do it are also clear. But the will to get it done? That is the missing ingredient.
