This article from The New York Times speaks my mind clearly!
Mad About Kavanaugh and Gorsuch? The Best Way to Get Even Is to Pack the Court
Their lifetime appointments cry out for Democratic hardball.
By Jamelle Bouie, Opinion Columnist
Sept. 17, 2019
President Trump bragged on Twitter recently about his success filling up the federal judiciary. “I want to congratulate” Senate majority leader “Mitch McConnell and all Republicans,” Trump wrote: “Today I signed the 160th Federal Judge to the Bench. Within a short period of time we will be at over 200 Federal Judges, including many in the Appellate Courts & two great new U.S. Supreme Court Justices!”
This is just a slight exaggeration. After 32 months in office, Trump has made 209 nominations to the federal judiciary, with 152 judges confirmed by the Senate, including two Supreme Court justices. That’s nearly half the total confirmed during President Barack Obama’s eight years in office.
His picks fit a mold. They’re overwhelmingly white (87 percent, compared with 64 percent of Obama’s), overwhelmingly male (78 percent, compared with 58 percent of Obama’s), staunchly conservative and fairly young — the average age of judges confirmed under Trump is 50. His youngest confirmed nominee, Allison Rushing of the Fourth Circuit Court of Appeals, is 36.
Trump’s Supreme Court appointments are mired in controversy. Justice Neil Gorsuch occupies a stolen seat, held open during Obama’s tenure by a blockade conducted for nearly a year by McConnell, who cited a previously nonexistent “tradition” of tabling nominations made in an election year. (In the 20th century alone, the Senate confirmed Supreme Court nominees in five different presidential election years — 1912, 1916, 1932, 1940 and 1988). And of course Justice Brett Kavanaugh was confirmed last September under clouds of suspicion that stemmed from accusations of sexual assault and sexual misconduct to a bevy of ethics complaints.
Democrats are left in an unenviable position. Should they win a federal “trifecta” — the White House, the Senate and the House of Representatives — they’ll still have to deal with a Trump-branded judiciary. It’s entirely possible that a future Democratic agenda would be circumscribed and unraveled by a Supreme Court whose slim conservative majority owes itself to minority government and constitutional hardball.
So what should Democrats do? They should play hardball back. Congress, according to the Judiciary Act of 1789, decides the number of judges. It’s been 150 years since it changed the size of the Supreme Court. I think it’s time to revisit the issue. Should Democrats win that trifecta, they should expand and yes, pack, the Supreme Court. Add two additional seats to account for the extraordinary circumstances surrounding the Gorsuch and Kavanaugh nominations. Likewise, expand and pack the entire federal judiciary to neutralize Trump and McConnell’s attempt to cement Republican ideological preferences into the constitutional order.
The reasoning underpinning this proposal isn’t just about the future; it’s about the past. We have had two rounds of minority government in under two decades — two occasions where executive power went to the popular-vote loser. Rather than moderate their aims and ambitions, both presidents have empowered ideologues and aggressively spread their influence. We are due for a course correction.
The goal isn’t to make the courts a vehicle for progressive policy, but to make sure elected majorities can govern — to keep the United States a democratic republic and not a judge-ocracy. Yes, there are genuine constitutional disputes, questions about individual rights and the scope of federal power. At the same time, there are broad readings of the Constitution — ones that give our elected officials the necessary power to act and to solve problems — and narrow readings, which handcuff and restrict the range of our government.
In the past, courts have walled entire areas of American life off from federal action. They’ve put limits on American democracy and blocked the people, through their representatives, from tackling fundamental issues of public concern. During Reconstruction, courts handcuffed the government as it tried to address violence and state-sanctioned racism; during the Progressive Era, they kept Congress from putting the economy under some measure of democratic control.
We’re living through a version of this right now. Under Chief Justice John Roberts, the Court has denied Medicaid coverage to millions of poor people, neutered the Voting Rights Act, authorized new waves of voter suppression, unleashed the power of money for entrenched interests and would-be oligarchs, and opened the door to extreme partisan gerrymandering. And while this Court hasn’t brought the absurd Lochner-era doctrines that effectively made it impossible to legislate working conditions back from the dead, it has, in Justice Elena Kagan’s phrase, “weaponized” the First Amendment to strike down economic regulation and undermine organized labor.
Just to even win power, Democrats will have to overcome major structural obstacles, from the Electoral College in the race for the White House to a Senate that gives disproportionate representation to the most conservative areas of the country. To pass anything more than incremental legislation, they’ll have to overcome (or eliminate) the filibuster. And then they’ll still have to do the hard work of legislating.
In other words, if everything goes right for their party in this best case scenario, Democrats will still face a hostile Supreme Court majority, with like-minded judges throughout the federal judiciary. They can beat Trump at the ballot box, but unless something is done about the judiciary, they will lose to him in the courtroom.
That something is to pack the courts. Yes, there’s the risk of escalation, the chance that Republicans respond in turn when they have the opportunity. There’s also the risk to legitimacy, to the idea of the courts as a neutral arbiter. But Trump and McConnell have already done that damage. Democrats might mitigate it, if they play hardball in return.
At the start of his administration, President Franklin D. Roosevelt implemented restrictions on the ownership of gold, to prevent hoarding and speculation. Congress followed suit, canceling all clauses in public and private contracts that allowed payment in gold. As the Supreme Court considered the constitutionality of these actions, Roosevelt drafted a speech defending his actions as necessary for the “economic and political security of the nation.” He was prepared to challenge an adverse ruling.
To that effect, he quoted President Abraham Lincoln, who said, in his first inaugural address, that “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court” then “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”
Roosevelt eventually came to court-packing as the solution to this problem. He was forced to abandon the plan, but it had the desired effect: The Court allowed him — and Congress — to govern. Facing similarly hostile ideologues, as well as an organized effort to entrench minority rule, today’s Democrats should learn from this example.