COURT PACKING — A GOOD OR BAD IDEA?
By John P. Flannery
The Republicans packed the Supreme Court with three Justices, the worrisome threesome I call them, which begs the question, how does one repair what Trump and McConnell did?
With the replacement of Associate Justice Ruth Bader Ginsburg, the court profile reflected a 6–3 conservative majority after decades of a 5–4 split or control by a moderate block.
Three justices, Neil Gorsuch, Brett Kavanaugh and Amy Barrett, all Trump appointees, made the tilt, really a lurch, possible.
This newly modified Supreme Court puts at risk social reforms and government programs including abortion rights, gun safety, gay marriage, affirmative action, voting rights, employment discrimination, and Obamacare.
What is past foreshadowed the kind of Supreme Court we got, especially Justice Amy Barrett.
This newly minted Justice had signed public letters opposing abortion and dissented when the rest of the appellate court where she sat before the Supreme Court upheld a lower court opinion blocking tough abortion restrictions.
Justice Barret raised concerns that, if confirmed, she would show religious bias, be less secular, way more sectarian, and sure enough, that’s what happened, she joined several other justices holding that COVID-19 restrictions on public religious services violated freedom to worship.
Before she joined the Court, by the way, the court had rejected this precise argument in California and Nevada.
Gorsuch wrote, “Even if the constitution has taken a holiday during this pandemic, it cannot become a sabbatical.” Another member of the worrisome threesome.
Former President Trump and former Senate Majority Leader McConnell passed few bills, but they did work overtime to change the composition of our federal courts — and for the worse — filling 28 percent of the vacant seats on the federal bench, and three Supreme Court Justices.
The new talent they pushed forward were uniformly conservative and young and less racially and ethically diverse (only 4% black)(75% male).
The Federalists supplied lists of acceptable nominees, and Trump and McConnell felt no need to consult with the ABA, nor any impartial alternative source to vet better judicial nominees.
President Obama nominated Judge Merrick Garland to replace the vacancy created by the passing of Justice Scalia.
There was plenty of time to have hearings and vote the nomination up or down in that presidential election year — 2016.
Majority Leader McConnell, however, refused to perform the Senate’s constitutional duty to “consent and advise” the President.
He said we don’t approve nominees to the Supreme Court during a presidential election year.
After the election, Trump chose someone else, not Merrick Garland, but Trump and McConnell couldn’t get the 60 Senate votes thenrequired to have Gorsuch confirmed.
McConnell did what he’s always done, slice the gordian knot. He simply changed the rules, invoked the “nuclear option,” and led a majority of the Senate to change the 60 vote rule, making it a mere majority necessary instead –the only way Gorsuch was going to be confirmed by the Senate.
Gorsuch got 54 votes to 45 against; WV Senator Manchin voted for Gorsuch.
Next up, Judge Bret M. Kavanaugh was confirmed by the narrowest margin in history — 50 to 48. Women up in the gallery shouted cries of “shame.” The shame arose out of the allegations by Christine Blasey Ford that Kavanaugh had tried to rape her when they were teenagers. WV Senator Manchin voted for Kavanaugh. Amazing, don’t you think?
Having said that the Senate could not consider Judge Garland because he was nominated in an election year, Senate Leader McConnell did a back flip (imagine that) and steam rolled Judge Amy Barrett’s nomination through the Senate aboard the McConnell express, on a 30 day timetable, just days before the presidential election that Trump lost.
Judge Barrett became the first Supreme Court nominee to be confirmed with only one-party support.
The Senate also had never confirmed a nominee so close to an election.
Barrett was confirmed by a vote of 52–48; WV Senator Manchin opposed her; Maine Senator Susan Collins voted in opposition.
Then Minority Leader Senator Schumer said, “Today will go down as one of the darkest days in the 231 year history of the United States Senate.”
What’s the remedy for such politically sharp practices as Messrs. Trump, Mr. McConnell and the Republican Caucus invoked to confirm this worrisome ideological conservative judicial threesome?
How about adding an equivalent number of justices to counter the worrisome threesome?
Of course, since that would make the court an even 12, the change must require 4 new justices.
Senator Ed Markey (D-Mass) and Rep. Jerry Nadler (D-NY) have introduced a bill to add 4 seats to the high court.
There are those Dems who think we should let a Commission study the question for months. It’s just a way to kick the decision down the road without deciding anything, giving cover to the cowardly.
Some object that we’d have to get rid of the filibuster for this to work and, heavens, how can we do that..
Why not?
The Republicans did just that when they confirmed the worrisome threesome.
Why not follow suit and do the same to enlarge the court to remedy McConnell’s past procedural machinations.
There are some who say, you can’t change the number of justices
The Constitution says nothing about the High Court’s size or composition.
Congress has the power to set or modify the size of the court by virtue of the fact that it is necessary to do so.
Since Congress enacted the Judiciary Act of 1789, we had 6 justices on the first court, then 5.
The Court reached its height with 10 justices, during the civil war.
President Abraham Lincoln wanted to “appoint justices who favored the Republicans’ agenda of combatting slavery and preserving the union.”
So what do we do?
Since the former Republican President and former Majority Leader McConnell had their way with the Court packing it securely; it’s our duty to reform their unconstitutional and ideological deformity — and enlarge the court by 4 more justices.
JonFlan@aol.com, @jonflan
