Politics Court-packing is not popular, but Democrats may do it anyway if they win
Court packing is no hypothetical
On Monday Joe Biden finally broke his months-long silence on court packing. Previously he refused to take a stand—because “whatever position I take in that, that’ll become the issue” as he said in the Sept. 29 debate, said voters didn’t “deserve to know” his position or that they would know it “when the election is over,” © Provided by Washington Examiner His media cheerleaders, such as CNN’s Don Lemon, said questions about court packing were just “hypothetical” -- a tautology, since any question about what a candidate would do is hypothetical, since it depends on who wins the election.
Judge Amy Coney Barrett is hurtling toward confirmation, potentially entrenching a durable conservative majority on the Supreme Court if the number of justices remains nine.
That is the top concern conservatives have: If the Democrats win the White House and the Senate, her placement on the Supreme Court by a president they detest and will have then defeated, with the votes of Republican senators who would not grant Democratic nominee Judge Merrick Garland a hearing in an election year, will push them inexorably toward court-packing legislation.
The Democrats’ decision to boycott the Senate Judiciary Committee vote on Barrett, allowing her nomination to be advanced to the full chamber by a unanimous 12-0 vote, was an admission there is little they can do to stop her. The 48-year-old performed well in the committee hearings, and Democrats failed to identify any issue that would potentially derail her, two years after the contentious Brett Kavanaugh nomination fight.
Amy Coney Barrett hearings conclude: Here's what happens next in Supreme Court confirmation
Here’s what to expect and when she could officially be sworn in as the ninth justice on the Supreme Court. More: Amy Coney Barrett Supreme Court hearings conclude, paving way for confirmation days before election More: How we got here: The battle over Amy Coney Barrett's nomination to the Supreme Court, recapped Committee vote Oct. 22 The Senate Judiciary Committee – the same 22-senator panel that spent the week questioning Barrett – will vote on Oct. 22 at 1 p.m. EDT on Barrett’s nomination.
Public opinion has moved in Barrett’s favor. A Gallup poll found that 51% of people wanted her to be seated, making her more popular than Kavanaugh, Justice Neil Gorsuch, or President Trump, despite the opposition of 84% of Democrats.
Democrats are especially outraged that Trump will likely get to replace iconic liberal Justice Ruth Bader Ginsburg. “There is a nakedly political aspect to rushing to get this done,” said Democratic strategist Spencer Critchley. “When the president himself has blurted out the political reasons for doing this.”
Some leading Democrats have said that if they win the presidency and Senate following Barrett’s confirmation, they should proceed with legislation to expand the Supreme Court to allow for the nomination of additional liberal justices. This includes the top Democrat on the House Judiciary Committee.
Amy Coney Barrett's Supreme Court hearings lacked the drama that Brett Kavanaugh's proceedings had. Here's why.
Amy Coney Barrett's Supreme Court confirmation hearings lacked the drama of Brett Kavanaugh's proceedings. Here's why.Democrats warned of the precedent set if Republicans rushed through a nominee in the middle of a pandemic and presidential election, arguing no nominee should be considered until after voters cast ballots. They rattled off threats to slow the process, teasing a host of tools that could bog down the hearings, with some lawmakers even publicly suggesting launching impeachment proceedings against President Donald Trump.
Biden and his running mate, Kamala Harris, have declined to endorse court-packing, though they have also pointedly refused to rule it out. Biden said in an interview taped Monday that he wantsto study the issue. Democrats challenging incumbent Republican senators have often opposed it. A recent Washington Examiner/YouGov poll the idea is unpopular.
“We are strongly of the opinion that we need to keep the Supreme Court's numbers the same,” said Paul Summers, a former Tennessee attorney general who is part of a bipartisan group mobilizing against such proposals. He argues court-packing would turn the Supreme Court into a super-legislature and that both parties would engage in it when they held power, with no logical stopping point.
There nevertheless remains the sense that if Barrett is confirmed and continually sides with the conservative bloc, Democratic support for court-packing will grow. “We’d have to be crazy not to do it,” said a Democratic operative. This could push institutionalists appointed by Republican presidents to side with the liberal bloc on some controversial decisions to undercut support for court-packing. “Intimidating Chief Justice [John] Roberts is part of the strategy,” said a conservative court watcher.
Republicans on Senate panel to vote on Amy Coney Barrett's Supreme Court nomination as Democrats boycott hearing
The Senate Judiciary Committee will vote on Amy Coney Barrett's confirmation to the Supreme Court on Thursday, setting up a full Senate vote Monday.The Senate Judiciary Committee is set to meet at 9 a.m. EDT. Barrett is expected to be approved by Republicans who hold the majority on the panel, with Democrats saying they will boycott the day's proceedings. The full Senate is expected to take a final vote on Barrett's confirmation on Monday, eight days before Election Day.
Controversies that could provoke the Democrats on court-packing could come as soon as next month if there is litigation about the presidential election that ends up before the Supreme Court. There could also be cases involving abortion and Obamacare.
Few conservatives favor shelving the Barrett nomination over these concerns. They point to Republican attempts to deescalate the Supreme Court nomination wars by voting overwhelmingly for Bill Clinton’s nominees — only three GOP senators opposed Ginsburg — after the rejection of Robert Bork and the narrow confirmation of Clarence Thomas after a bruising fight. Biden chaired the Senate Judiciary Committee during this time. Senate Democrats then filibustered some of George W. Bush’s lower-court nominees after he succeeded Clinton.
Sen. Ted Cruz, a Texas Republican, has introduced a single-sentence constitutional amendment: “The Supreme Court of the United States shall be composed of nine justices.” Summers floated the idea of advancing the amendment through a convention of the states, a process allowed by the Constitution but never utilized, if Democrats control both houses of Congress.
Biden’s Slippery Tactic to Snuff the Court-Packing Debate
Nothing beats a bipartisan commission for dodging a no-win controversy.“If elected, what I will do is I’ll put together a national commission, a bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative,” Biden told Norah O’Donnell of CBS News. “I will ask them to, over 180 days, come back to me with recommendations as to how to reform the court system because it’s getting out of wack.
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Want Nonpartisan Court Reform? Add 4 Liberal Justices. .
Manufacturing a liberal majority is likely a prerequisite for preventing the Roberts Court from striking down unprecedented nonpartisan reforms.This week, Republicans cemented their 6-3 Supreme Court majority by confirming a 48-year-old, far-right justice to the bench in flagrant defiance of principles they had preached just four years ago. Such bad faith — combined with the Roberts Court’s hostility to voting rights, labor, economic regulation, and reproductive choice — has brought previously marginal ideas for judicial reform to the center of Democratic politics.