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?


  1. Mel Brender October 11, 2019 at 7:43 pm

    I know it’s a liberal pipe dream, but I like to imagine the next democratic president notifying Kavanaugh that if he doesn’t resign, the serious charges that he perjured himself during his confirmation hearings will be investigated thoroughly. To avoid impropriety, it would be better if a member of the house Judiciary committee so notified Kavanaugh, and the president stayed out of it.

    • tonygreco October 11, 2019 at 7:59 pm

      If the possibility of impeachment proceedings for perjury seems more than remote, it might serve as an incentive for Kavanaugh to do the right thing under my scenario. What’s wrong with pipe-dreaming?

  2. Art Schmidt October 12, 2019 at 12:54 am

    Gorsuch and Kavanaugh will tell President Warren, “We don’t want the acclaim of people like you. We’ll stay put and enjoy long careers as heroes to our base instead. So go ahead and pull the trigger, propose the two-part Greco Plan to Congress.”

    First, the 15-year terms are off the table unless we amend Article III.

    As for the two extra seats, I think they’ll poll very badly, and I don’t believe asking two justices to resign first would help the polling. Three years on, McConnell’s blockade of Garland looks like simple hardball politics. It wasn’t illegal, people will say, so what’s the big deal? Republicans play for keeps on judges, and Democrats don’t. This has been true for decades.

    But cheer up, in your dream world we won’t really need this. You’ve posited a Democratic President, and so many Democratic Senators that there are 51 votes to end the filibuster. That’s a Congress that can do just about anything.

    • tonygreco October 12, 2019 at 1:11 pm

      A 15-year limit on future justices is one constitutional amendment that I think can garner widespread support across the political spectrum, especially if it is advanced by a Democratic president who stands to nominate a couple of new justices. As to your other objections, the status quo is clearly unacceptable and we’ve gotta try something, no?

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