The Supreme Court is a body different from all others. The have final say on the law. If it’s statutory construction – fine. Congress can always reword the law. If it’s constitutional – there is nothing anyone can do. Many have pointed to the democrats changing the rules on lower level judges to justify the Republicans changing the rules on the Supreme Court. That is about as absurd a justification and analogy as you can find.
There are hundreds of lower level judges and every president will have an ability to nominate many. Some more, some less, but it’s an ever rotating bench ensuring that the rule that the Democrats changed would benefit both parties if not equally, at least at a proportion that no one can say was unbalanced at the time since no one can predict the precise patterns. The voting population will have a fairly big impact on the direction of the overall lower level judiciary by how they vote.
That is not the case with the Supreme Court. There are currently nine members. Vacancies are rare. Unlike lower level judges where a single appointment is just one of many, a single Supreme Court appointment can have major impact on the country. That is why nominees need careful vetting and should be required to have at least some level of good-faith support by the minority.
But Republicans have changed the rules. Through their machinations on Garland, Gorsuch, and now Kavenaugh, they have declared that the party in control of the White House and Senate has full and unchecked ability to shape the Supreme Court. And how is the timing of when these major shifts are decided? By the random fact of when a justice retires or dies. Or when a party in control of the senate can delay until the timing is better for them. Democracy cannot allow a single party to have shaped a court by these rules in any case, much less in one where the party in power didn’t even win a popular vote.
Democrats cannot allow the Republicans to win due to their ability to manipulate timing. They have broken and changed the rules to give themselves full power because they are in control. Democrats must take analogous steps when they are back in power to do the same. Unfortunately, the only method is to increase the size of the court.
Some will point to Roosevelt’s failed attempt but that is too far removed to have any relevance to today. Some will say, all that will happen is that Republican’s will do the same when they are in charge again. And I agree with you. But the question is would we rather have control over the court some of the time or none of the time. We have lost. The question is will we concede permanent defeat.
One additional point, rights are easier to give than take away. Democratic courts expand rights. Even with a flip flopping majority, they may find it difficult to undo progress by Democratic courts. Just look how hard a time they’re having repealing Obamacare. And ultimately, perhaps someone will look at the craziness and say we need to do something about this. Roberts I do agree cares about his legacy and the legitimacy of the court (unlike the other Republican appointees) and could step in and say “what do we need to do to stop this”.
In 2020 if we take all three houses, a reasonable possibility, here is what I would do:
On day one we give an ultimatum. (1) Kavenaugh steps down. (2) We will consult with Republicans to find an Justice to replace him acceptable to both parties in good faith. Think someone like Garland who is left – but not extremely so. If they agree to that – we can have a reset on the court and proceed with future nominations in good faith requiring some minority support. If they do not agree, we tell them we will follow the “McConnell/Grassley Rule” that when you have control of all three houses, you control the court. Because THAT was their actual rule in effect no matter how they try to frame it.
Yes – it’s an extreme solution. But I see it not only as the only way forward, but something that democracy demands to realign the court to what America demands.
