There Is Only One Way Out of This Crisis: Expand the Court

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As feared, Donald Trump should have enough votes from hypocritical Republican senators to push through his Supreme Court nominee, in violation of the rule against confirming people in a presidential election year that Mitch McConnell invented to block Merrick Garland’s nomination in 2016.

We are in a crisis. If Trump and McConnell confirm another justice before the inauguration, the court will be slanted, 6-3 in favor of justices appointed by Republican presidents. Of those, one, Clarence Thomas, was accused of repeated sexual harassment. Another, Neil Gorsuch, was elevated only after McConnell took unprecedented steps to block the nominee of a Democratic president. A third, Brett Kavanaugh, has been accused of lying to Congress; participating in a scheme to steal preparatory e-mails from Democrats on the Judiciary Committee; exposing himself and making unwanted sexual advances to a college classmate; and attempting rape while he was in high school. And now Trump and McConnell propose to add a fourth justice while an election is underway, perhaps to be confirmed by a lame-duck Senate full of people who may have already been voted out of office.

In response, there seems to be a cadre of moderate Democrats, both in office and lurking around the political landscape, who are desperate to come up with any solution to this crisis other than expanding the number of justices on the Supreme Court should they take power.

Expanding the number of justices (dubbed “court packing” after Franklin Delano Roosevelt’s failed attempt to stack the court with justices amenable to New Deal policies in 1938) is the most direct way to address the structural imbalance brought about by Republican manipulation of the nomination process. Democrats could, through legislation that passes both chambers of Congress and is signed by the president, add additional members to the court, and then fill those newly added seats. Perhaps the Democrats could add four justices to balance out the four Republican who shouldn’t be there. As I wrote back in February, I favor a plan that would add 10 justices to the bench.

But instead of organizing around a political solution to the Republican politicization of the courts, some Democrats remain stuck on the old rules of engagement. Some Democrats remain hopeful that Republicans can be shamed into doing the right thing, as if the party that steps over 200,000 dead bodies to carry Trump’s golf bags is capable of feeling shame. Others, including a number of serious legal scholars, have taken to offering an increasingly fanciful set of possible solutions to the likely problem of a court with six conservatives. The idea of term limits—that is appointing Supreme Court justices for a set number of years instead of indefinitely until they die or retire—is incredibly popular. Polls show that 77 percent of Americans favor some form of restriction on the length of service on the Supreme Court.

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