One year ago this week, President Trump nominated Brett Kavanaugh to a seat on the United States Supreme Court.
Today, many Democrats seek to limit Justice Kavanaugh’s impact (and that of President Trump’s other Supreme Court appointment, Justice Neil Gorsuch) by adding additional seats to the nine member court — and filling them with progressive judicial activists.
At least 10 of the 22 Democratic presidential candidates favor some form of court-packing. Pete Buttigieg and Robert Francis (aka “Beto”) O’Rourke have floated a proposal to expand the number of justices to 15 — five appointed by Republicans; five appointed by Democrats; and five selected by the ten appointed justices.
Sens. Kamala Harris, Elizabeth Warren, and Kirsten Gillibrand also support an enlarged court.
And a left-wing advocacy group, originally called “Pack the Court,” plans to spend millions of dollars during the 2020 campaign cycle to pressure candidates into making court-packing a priority.
No doubt, some marketing genius advised these activists that the name Pack the Court reeked of a brazen political power grab. The group now goes by the name “Take Back the Court,” which falsely implies that the court is a lopsided political institution that requires balance in order to restore its legitimacy.
Of course, as any 8th grade student of civics should know, the Supreme Court is not supposed to operate, like some federal commissions do, with a “balance” of members from the two major political parties. Nor is it supposed to advance certain policy positions.
Although the selection and appointment of federal judges is, inevitably, a political process, once confirmed, federal judges are supposed to rise above politics. Lifetime appointments are intended to insulate them from political pressures and from the current cultural zeitgeist.
The role of a judge is not to respond to the will of the people or to update laws for the modern era. (That is the job of our elected representatives.) The role of a judge is limited to interpreting the law as written and ensuring that laws passed by the political branches comply with the United States Constitution. As Chief Justice John Roberts famously noted, the role of a judge is like that of a neutral umpire whose job is to call balls and strikes, not pitch or bat.
Theoretically, this should be true irrespective of whether a judge was appointed by a Democratic or Republican president.
Unfortunately, however, progressives have long sought to use the courts to score political “home runs” and reshape social policy. This is why they fight so bitterly to stop the confirmation of judges who understand the limitations of judicial power.
In an Orwellian twist of logic, Democrats who today favor court-packing claim that their scheme is necessary to “de-politicize” the court. Of course, what they really mean is that court-packing is necessary to guarantee their desired outcomes on particular issues.
Americans should be leery of such schemes.
Although the Constitution does not dictate the appropriate number of justices, since 1869 the Supreme Court has had nine (eight associate justices plus a chief justice).
When President Franklin Roosevelt attempted to pack the court in 1937, it didn’t go well. The American public strongly opposed the measure. The Senate Judiciary committee called it “a needless, futile and utterly dangerous abandonment of constitutional principle … without precedent or justification.” Ultimately, Roosevelt backed down.
Sadly, some Democrats today seem not to have learned history’s lesson that court-packing plans undermine the notion of an independent judiciary and (to use a current turn of phrase) threaten to “hack” our democracy by placing the power to make law in the hands of a few unelected elites.
To their credit, Democratic presidential candidates Bernie Sanders, Cory Booker, and Joe Biden recognize that packing the court would set off a judicial arms race in which Republicans would retaliate by adding even more justices — until one day (as Booker puts it) “our grandchildren will ask us: ‘Hey, granddad, why are there 121 people on the Supreme Court?’”
Too bad some of their Democratic colleagues don’t see it that way.