Monday, October 12, 2020

The Reason Why Joe Biden Should Commit To "Packing" The Court — If Barrett Gets Confirmed, That Is...

ONE QUESTION THAT DEMOCRATIC presidential nominee Joe Biden seems stuck on during the waning weeks of the campaign is whether he'd "pack the Supreme Court" or not if he's elected, meaning would he increase the size of the bench in order to create a better balance of liberal and conservative justices.

So far, he's not made his views clear on the subject.

But he absolutely should "pack" the court, with one extra justice, if Amy Coney Barrett is appointed.

President Donald Trump has had three Supreme Court vacancies during his presidency. Only one came in the middle of his term, with the first nomination coming about due to Republicans blocking President Barack Obama's choice the year before Trump took office.

Republicans insisted that Obama's pick not be heard since it was so close to a presidential election. Now, they're inconsistently rationalizing that rule doesn't matter anymore.

Any way you slice it, the hypocrisy makes clear that Trump should not have been able to appoint either the first vacancy that happened under his watch (as soon as he entered office) or this most recent one.

He got an extra nomination to the court that he shouldn't have received, if the rules had been carried out consistently. Either GOP senators should have let Obama make his pick back in 2016, or Republicans should refrain from going forward on Barrett's nomination.

It's more than likely that Barrett will get appointed. So Biden absolutely should commit to one extra member on the Supreme Court, if he wins office. Doing so would negate the negative effects of a seat being stolen by the GOP and Trump.

If Barrett's nomination doesn't go through, however, through some miraculous circumstance, there's no need to rectify the problem. Biden should not add another seat to the court, but fill the vacancy that would still remain.

Josh Marshall at Talking Points Memo explains it more succinctly, in a series of tweets he made on the issue over the weekend (bolded emphases added):

For the last decade Republicans have used an escalating mix of aggressive and corrupt means to stack the federal judiciary in order to entrench power they believe they will no longer be able to win in majority elections. If Democrats control the Congress and the White House, they must take steps to undo this harm and corruption and the most viable, logical path is to add additional seats to the Supreme Court. This is no more than undoing bad acting by Republicans, a remedial, reactive action to ensure that democratic government can function.

If Democrats are pressed on whether they support expanding the Court, the obvious answer is it's up to the GOP! The rushed confirmation of Amy Coney Barrett is the culmination of this effort to stack the judiciary via corrupt means. If Republicans give Democrats no choice, the consequences are on them. Will Democrats expand the Court? The substantive answer should be, absolutely. The political answer is, we’ll have to see what Republicans do. If they continue to abuse their power we’ll have no choice.

The one worry about this idea that I have is that it would create a precedent that might allow for increasing the size of the court for future presidents. But so long as it's framed in such a way as to explain it's a one-time deal — as a means to correcting a problem created by the corrupt and hypocritical Republican senators/Trump over the past four years — then those fears should be alleviated.

On top of this, reforms to the court should also be considered, to ensure such corrections will never be necessary again. And a commitment to lowering the number of justices to nine, within a year or two, should be made.

Featured image credit: Gage Skidmore/Flickr; AscendedAnathema/Wikimedia

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