Pack the Court
If you suggest that if Mitch McConnell rushes Donald Trump’s nominee on to the Supreme Court just weeks before the election, Democrats should neutralize that pick the next time they control the presidency and both houses of Congress, the clucking by the moderates or neo-liberals or centrists or whatever you call them is DEAFENING. No! Reform the Court not pack it!
I know what McConnell plays calls them: weak-minded political dilettantes, naïve fools, suckers.
He’s playing hard ball while Democrats play whiffle-ball. Hard ball as in the pitcher throwing pitches straight at the batter’s face. While Democrats meekly point to a tattered old copy of Marquis of Queensbury’s rule-book, Ultimate Political Fighting Champ McConnell kicks them in the face. Hard. While smirking.
Seeing a theme here? If not, trace the path of the future’s stamping boot to its potential “forever home” on your human face.
But “the norms”! civility! we whimper like babies.
There are no norms left. None. Done and dusted. Deal with it.
The milk has been spilled. The horse is out of the barn. The cake is baked. The toothpaste is out of the tube. The baby has been tossed out with the bath water — which incidentally is the only method of birth control left after the Alito-Gorsuch-Kavanaugh-centered Supreme Court is done.
McConnell knows the norms are just a lot of blah-blah. What is real is power and using it. He broke no laws blocking Obama’s nomination of Merrick Garland — just those toothless norms. If he exploits Senate rules and his majority to put Daniel Cameron on the Court, you can whine about hypocrisy all you want, but Justice Cameron will be there for decades nonetheless.
You can only beat him by not throwing away any power you have for high-minded-but-outdated, unwritten rules of civility.
House Speaker Nancy Pelosi knows the norms are dead. When asked about the court, she said when democracy is at stake, defenders must “use every arrow in our quiver.”
There is nothing magical about the number nine. There were six justices when George Washington appointed the first Supreme Court and over the years Congress has set the number of justices from 5 to 10, before it was frozen at nine after the Civil War. State high courts have between 5 and 9 judges. International courts can have up to 15.
The Constitution just creates a Supreme Court and then gives Congress the power to decide the number of judges and create federal court system: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
But wait: didn’t Roosevelt try to pack the Supreme Court and was rebuffed by overwhelming opposition? I’m sorry, Mr. Trivial Pursuit Simple-Answer Boy, but that’s a negative, ghost rider. For decades people have learned the wrong lesson about the failure of FDR’s complicated plan to enlarge the Court. The lesson wasn’t that “packing the court” was beyond the pale, it was that FDR conceived the plan in the White House, sent it to the Democratic Congress, and then imperiously refused to alter it when Congressional leaders raised issues with it.
The truth is Roosevelt’s court plan was a hot mess, yet it could have passed. It added a new seat when a justice reached the age of 70 and a half years old, up to six new justices. Yes, “a half” — something one usually only hears when asking a toddler how old he is. “I’m tree and a haff!!” FDR’s decision to not consult House leaders angered that body’s judiciary committee chairman, who held it up, forcing the Senate to take it up first.
Still, despite overwhelming scorn by editorial boards generally hostile to FDR anyway, popular opposition for the plan never polled above 49%.
If Roosevelt had adopted a few suggestions from the Senate leadership, it would have muted opposition. Even so, if Senate Majority Leader Joe Robinson hadn’t dropped dead of a heart-attack in the middle of the battle, the court bill would have passed. (Instead the new Leader, Kentucky’s Alben Barkley, killed it, also killing his chance of being named vice-president in 1944).
The real lesson is that Congress is important and can’t be ignored by a president — even if that president had just won a landslide re-election victory. Especially when the Constitution gives the legislative branch the power that the president is trying to exercise.
And, if the Democrats sweep in 2020, Congress needs to lead on this. And not only the Supreme Court but the whole federal court system could stand some expansion. Dockets are crowded, poor litigants can’t afford to seek justice, and the creaky Supreme Court can only scratch out 90 or so decisions a term with their quill pens. (Yet, mysteriously, despite this grueling workload, they always manage to crank out a dissent or concurrence for each of that tiny number of cases. Weird).
I’d like to see more district courts to speed up sex and racial discrimination cases, unbind consumers from unfair arbitrations, and adjudicate lawsuits involving civil rights claims against law enforcement.
Oh, while we are at it, let’s create enough federal judges to take asylum claims out of overworked immigration tribunals and into federal courts where eight-year-olds don’t have to act as their own attorneys.
And let’s have enough appellate courts to give more than a cursory look at the appeals of hundreds of thousands of black, brown, and poor people trapped in American prisons in the middle of a deadly pandemic.
Democrats need to win the presidency and senate to do this. But if we voters donate money, make calls, knock on doors, physical and virtual, to acquire the power of these offices, how dare our elected representatives not use that power?
It’s not civility to stand aside as the Supreme Court strips women of their right to reproductive autonomy. No norm requires that Democrats shrug as the right to marry is taken from LGTBQ citizens.
And the Supreme Court decides to deprive African Americans of the full opportunity to vote, we need the Democrats to put four new Black justices in their face.
And smirk like Mitch when you do it.
