The current Supreme Court has 5-4 right-wing majority that would not have come about had it not been for the theft of a Court seat that President Obama should have been able to fill. Recall that Mitch McConnell refused to even hold hearings, much less a Senate confirmation vote, on the nomination of Merrick Garland, whom Obama designated to fill the vacancy left by Antonin Scalia’s death in February 2016. In an unprecedented move, GOP leader McConnell blocked the appointment with the specious argument that a nomination in a presidential year belonged by right to the president elected in November. Garland, a moderate in his 60s, was respected by senators on both sides of the aisle and would almost surely have been confirmed. So, Democrats have every right to view the current Court majority, which has advanced a hard-right, partisan agenda, as illegitimate.
What should the president who replaces Trump in January 2021 do about this situation? One possible solution, assuming Democrats win a Senate majority, would be to propose the addition of two more seats to the Court, to be filled by the new president. This step would be technically kosher, since the Constitution does not specify the number of justices on the Court; it hasn’t always been nine. But, it would incur furious opposition, with Republicans screaming about a power grab by the new president. It would also set a precedent, legitimating further court packing by the next Republican president, then by the next Democratic president, etc. In a typically thoughtful piece today, the NY Times’s David Leonhardt summarizes the dilemma:
I’ll confess to being deeply torn on this issue. I don’t like the idea of court packing, which I think could lead to never-ending escalation between the parties and the potential breakdown of the judicial system. But I also find the status quo unacceptable: A court majority of dubious democratic legitimacy that sometimes acts as a kind of partisan super legislature.… If nothing else, I do think the country has reached the point where once-unthinkable solutions are worth debating.
Leonhardt links to a number of commentaries offering various approaches to the problem.
Here’s my modest proposal. As one of the first things she does in office, the new president should call in Trump’s two Court appointees, Gorsuch and Kavanaugh, for a chat in the White House. She should make plain her conviction that one of them holds a seat that should have been filled by Obama. (Technically, it’s Gorsuch, but it could be either of them.) Therefore, one of you should step down, enabling me to nominate Garland. This would be a tremendous personal sacrifice, of course, but the justice who makes it would be acclaimed for a noble, historic act aimed at preserving the endangered legitimacy of the court. If neither of you is willing, then I would propose to Congress the addition of two justices to the Court, while limiting their and all subsequent justices to a 15-year term. This proposal would ignite a partisan firestorm that would further erode the legitimacy of the Court, but what else can I do? I can’t let stand the theft of a Court slot. It’s your choice, judges: one of you can make history.
Would Gorsuch or Kavanaugh bite? I doubt it, but who knows? Both of them are committed warriors for the radical right, but one of them just might have enough respect for our democratic norms, and for the Court’s necessary role, to make the sacrifice.
Assuming both refuse, then the president will be in a strengthened position to wage the necessary bruising political battle. Importantly, she will have framed the issue as an extraordinary response to the extraordinary theft of a court seat. The most obvious solution—the resignation of one of the beneficiaries of the theft—has been rejected. There is no good alternative. This proposal does not justify escalating court packing by future presidents because it is very clearly a one-time response to McConnell’s transgression.
Anybody got any other ideas?