OCTOBER 13, 2020 – Republican Senators are hell-bent on confirming Amy Coney Barrett’s appointment to the Supreme Court. It’s a power play to advance a regressive social agenda. It’s also Constitutional.
GoebbelsNews feeds “the base” canned red meat by asking, “Will Biden pack the court?”—if elected, will Biden add liberal-leaning justices to the Supremes’ bench to offset the conservative majority?
So far, he won’t answer. He should.
To borrow ironically an in-vogue phrase, let’s “unpack what’s going on here.”
First, Biden alone can’t expand the Court from nine justices. Expansion of the bench would require an act of Congress. Biden’s support would certainly enhance the likelihood of passage, but Congress is the branch of government that “gets to” legislate, and only if the Democrats control that branch would a “court-packing” bill be passed.
Second, “packing the court” by Congress is as Constitutionally permissible as is ramming through an appointee’s confirmation. But just because something is permissible doesn’t mean it’s a good idea. Both “ramming” and “packing” are bad ideas; ramming, because it’s out of sync with the majority view, and packing, because it can be replicated by the opposing party when it’s back in power, thus destabilizing the judiciary and stare decisis.
Third, Republicans’ late-stage confirmation is dirty pool, given their treatment of Obama’s late-term appointment and the bold-faced hypocrisy of Mitch McConnell and Lindsey Graham. Let’s agree that “packing the court” is also dirty pool. As a result, GoebbelsNews’ persistent question to Biden is ludicrous. It’s as if a sports team that’s playing dirty (but technically within the rules) demands to know whether the opposing team plans to play dirty (but within the rules).
Instead of dodging the question, Biden should confront it:
“Here’s the deal. Let’s talk about how Republicans have already packed the court; how they denied Obama his appointment much earlier in his second term so that they could pack the Court with their appointee. Let’s talk about how Republicans refused to act on dozens of other Obama appointments to district and appellate courts, again, so that Republicans could pack those positions with Republican appointees—whose judicial competence was ignored in favor of a litmus test on narrow, extremist social views. Let’s talk about how in the last days of a campaign that Trump is losing, Republicans are ramming through an appointment because they can. That’s what’s called ‘packing the court.’
“Will I pack the court? Let me be clear: whether it’s by Republican methods or by the method Republicans fear will be used in retaliation for their dirty pool tactics, I’m against packing the court. It undermines the integrity and independence of the branch of government that most depend on those attributes—the judiciary. But all must consider this: If Amy Coney Barrett upends the Affordable Care Act, if by her vote, Roe v. Wade is overturned, if, once taking the oath of office, she defies the clear majority of Americans, she’ll trigger a movement to match Republican dirty pool with counter dirty pool. Whether that happens is your choice—and Judge Barrett’s.”
(Remember to subscribe to this blog and receive notifications of new posts by email.)
© 2020 by Eric Nilsson
