Liberals upset over President Trump’s second opportunity for a Supreme Court appointment are proposing to reshape the court in ways that could put six Trump jurists on the bench by 2020.
The latest signs of progressive desperation are proposals to expand the number of Supreme Court Justices to give the next Democratic president an easy way to shift the court back to the left. “A thoughtful court-packing proposal,” writes Jacobin’s Todd Tucker, “would ensure that the Court more carefully reflects the mores of the time, rather than shackling democracy to the weight of the past.” Of course, a conservative Supreme Court might better reflect today’s mores than a liberal one, but let’s set that aside for a moment.
The idea goes like this: the next time Democrats control the House, Senate and the Presidency, they can pass a reform bill that adds seats to the Supreme Court for the express purpose of enabling the appointment of jurists who will promote progressive policies. Since the size of the Court is determined by statute and not mentioned in the Constitution itself, it will be easy to expand the court with simple majority votes and an executive signature.
The court-packing plan is inspired by the Judicial Procedures Reform Bill of 1937, in which President Franklin Roosevelt, stymied by a Supreme Court that kept declaring major parts of his New Deal legislative agenda unconstitutional, sought to add up to six seats to the bench. Roosevelt’s court-packing scheme failed when members of FDR’s own party turned against it, either because of fidelity to a view of limited republican democracy, or more likely because they understood that eventually this law would come back at them with a vengeance when the political tables turned. In this respect they were wiser than Democratic former Senate Majority Leader Harry Reid, whose 2013 “nuclear option” eviscerated the filibuster and rendered the Senate opposition impotent when it came to blocking appointments. Thanks Harry.
FDR had the decency to dress up his naked power grab as an efficiency measure, though he also said in an Orwellian flourish that it was intended to “save the Constitution from the Court.” However, the new progressive proposals make no secret of their purely ideological purpose to pack the Court with leftists.
If liberals think court-packing is such a great idea, fine. Since expanding the number of seats on the Supreme Court is easy, why not do it now? Democrats will have to wait years to gain control of the Congress and the White House, but Republicans have that power today. So let the GOP pass a “thoughtful court-packing proposal” and give President Trump more seats to fill right away.
Progressives generally propose adding two seats to the court, but let’s go old school. Under Franklin Roosevelt’s proposal the president would be empowered to appoint an additional Justice for every serving member age 70 or over. That gives President Trump three more Supreme Court seats to fill, given the ages of Justices Thomas (70), Breyer (79) and Ginsburg (85). By the end of his first term the president will also get an additional appointment for Justice Alito, currently 68. That would yield a 13-member court, with six Trump appointees, three other Republicans, and four Democrats.
If progressives don’t like being on the losing end of 5-4 decisions, imagine their frustration when the votes are 9-4.
James S. Robbins is editor of Eagle Action Report and author of Erasing America: Losing Our Future by Destroying Our Past (Regnery, 2018).
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