Is there a way to add three or four more Justices to the Supreme Court that avoids the Senate filibuster?
If seems to me there is precedent for unpacking the supreme court. Mitch McConnell did this when he denied Merrick Garland any consideration and ignored President Obama’s nomination entirely for 293 days. McConnell was quoted as saying:
"One of my proudest moments was when I looked Barack Obama in the eye and I said, 'Mr. President, you will not fill the Supreme Court vacancy.' "
Thus, there is recent precedent for changing the number of Supreme Court Justices from 9 to 8 as a result of the nominating process. Undisputed. If the Senate acting alone can unpack the Supreme Court, why can’t they pack it? The number of Justices is not set in the constitution, but by a vote of Congress.
My idea is for Biden to nominate three or four justices to the Supreme Court, now.
The Senate would then would vote on the nominees, not subject to filibuster. A filibuster cannot happen since Mitch McConnell invoked the nuclear option with his nomination of Merrick Garland by Trump.
Each official nominating document sent to the Senate by the President for each Justice might include language implying (or possibly even stating) that this nomination officially would add 1 to the number of Justices. I am not even sure if any language is needed to authorize another Justice since the Senate has the inherent right in the Constitution to advise and consent for any nominee. The Constitution does not specify that the confirmation needs to be for an existing vacancy. Just confirming a new Justice might just be enough implied constitutional authority for that Justice to take the seat. The constitution takes precedent over existing law, and the Senate has the absolute right to confirm.
Then, to be safe, the House votes on the original nominating document verbatim. This is insurance against future court action. The House does not have the right to confirm, but by voting on the original nominating document, that may override pre-existing laws fixing the number of seats.
What happens next who knows? But it is fun to speculate. Would the Supreme Court just seat the new Justice? Who decides these things? Legal challenges would ensue. I think the Supreme Court might have to recuse itself entirely because of conflict of interest, leaving the matter to a lower court. If the lower court ruled that the nomination and confirmation were legal and constitutional, that would be the end of it.
Disclaimer, I am not a lawyer. I have no idea if this could really work and there are probably a number of legal hang ups in my argument. Fun to speculate though.