03.30.2020 0

Should the Constitution be amended to prohibit court-packing?

By Richard McCarty

Democrats have been angered and terrified by the progress that President Donald Trump has made in appointing conservative judges to the federal bench, especially to the Supreme Court. As a result, some Democrats are openly advocating for expanding the Court to pack it with liberal justices. Fortunately, Sen. Marco Rubio (R-Fla.) has introduced a resolution proposing an amendment to the Constitution to cap the size of the Supreme Court at nine justices; he has been joined by 14 other Republican Senators. On the House side, two Republicans have introduced resolutions to do the same thing, and both of those pieces of legislation have several cosponsors. Now Republicans should demand votes on these resolutions.

Liberals have long been able to turn to the courts to get virtually anything that they wanted when they could not win at the ballot box. Of course, the courts have also been very helpful to them in delaying or halting policies, programs, and projects that they opposed. So it should not be surprising that Democrats have resorted to desperate measures to maintain as much of their judicial power as possible.

For over 160 years, there have been nine seats on the Supreme Court. During the first 80 years of our Republic, the size of the Court varied between six and ten seats. That changed in 1869 when the Circuit Judges Act fixed the size of the Court at nine seats. In 1937, Franklin D. Roosevelt tried to expand the court and pack it with liberals who would rubberstamp his New Deal policies, but his scheme failed due to Congressional opposition.

In addition to left-wing commentators and activists, a number of Democrat politicians have either embraced packing the Court or expressed an openness to doing so. For example, Rep. Alexandria Ocasio-Cortez (D-N.Y.) and former Democrat presidential candidate Tom Steyer (D-Calif.) both support court-packing. Ten other former Democrat presidential candidates, including Sen. Elizabeth Warren (D-MA), former Mayor Pete Buttigieg (D-South Bend, Ind.), and Sen. Amy Klobuchar (D-Minn.), were open to the idea.

To be sure, Democrats are right to be worried about the courts. Not only has Trump replaced Anthony Kennedy, a moderate swing vote on the Court, with a conservative; but he has also flipped three circuit courts of appeal from having a majority of judges on those circuits appointed by a Democrat president to having a majority of judges appointed by a Republican president. A second term for Trump along with a Republican Senate could mean that Democrats have decisively lost the Supreme Court for a generation; and they could soon be facing a judiciary with very few circuits still dominated by liberal judges.

Of course, Democrats have no one to blame but themselves for the predicament in which they find themselves. Had Democrats been willing to work in a bipartisan fashion on health care reform in the early Obama years, they might not have lost control of the Senate in 2014. Furthermore, had Democrats not eliminated the filibuster for lower court judges while they had the Senate majority and had they not filibustered the nomination of Gorsuch, they might not have lost the ability to filibuster Supreme Court nominees. But at every turn, Democrats made the wrong choice, and now they are paying for it.

For decades, conservatives have labored to gain control of the federal courts, especially the Supreme Court; but Republican leaders never advocated for packing the Court. Instead, they sought to elect Republican presidents and Senators. The most radical thing that Republicans considered —but delayed implementing — was eliminating the filibuster for Supreme Court justices. As we are now on the cusp of a solid constitutionalist majority on the Court, Republicans must act to defend those gains by demanding votes on a Constitutional amendment to prevent Democrats or anyone else from packing the Court.

Richard McCarty is the Director of Research at Americans for Limited Government Foundation.

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