While I’ve mentioned in other posts the need to pack the courts, a column by Mehdi Hasan lays out clearly why Democrats should do so–and why other remedies will be more difficult and less effective. It’s a good read, but this, for me, is the key point (boldface mine):
Fourth, what about the possibility of escalation and retaliation? Why wouldn’t a Republican president in, say, 2024 cancel out the court-packing of his or her Democratic predecessor by adding more conservative justices to the Court? Samuel called this the “standard game theory objection, or tit for tat.” However, he pointed out, “that’s not what has happened throughout history, when the size of the court has been adjusted.”
Plus, suggesting Republicans will retaliate to Democratic court-packing by doing the same is absurd: the GOP has already packed the Supreme Court. In 2016, Republicans in Congress prevented a Democratic president who won two terms, with two clear majorities, from filling a Supreme Court vacancy; in doing so, the GOP deliberately reduced the size of the Court to eight justices for more than nine months. Senior Republicans even suggested they’d restrict the Court to eight justices for the entirety of a Hillary Clinton presidency. Then, within three months of Trump coming to office, Republicans confirmed the ultra-conservative Neil Gorsuch as the 112th Supreme Court justice.
To suggest Democrats would be emboldening or provoking Republicans, therefore, gets this whole dynamic the wrong way around. According to Samuel, “It’s the equivalent of saying, ‘If we invade Normandy, the Nazis will shoot at us.’”
Court-packing has to be near the top of a progressive agenda for 2020. Democrats will have to learn to “connect court-packing to popular progressive programs,” Samuel told me. For example, will “Medicare for All” ever be a possibility if there’s a decades-long conservative majority on the highest court in the land? Lest we forget, a Republican-led Supreme Court, without Kavanaugh and Gorsuch, was only a single vote away from abolishing Obamacare in 2012. How about fixing gerrymandering or voter suppression? Will progressives even manage to get elected to the White House or Congress if an emboldened and unchecked conservative-dominated Supreme Court ratchets up its defense of such practices, thereby bolstering the Republican Party’s electoral prospects?
Forget procedures; forget norms. There is too much at stake. Playing by the old rules while the Republicans tear them up won’t cut it. Deferring to a court composed of conservative ideologues masquerading as impartial judges, to an explicitly political yet unelected body bent on making sweeping, reactionary, unpopular changes to the United States, is a betrayal of liberal, democratic, and progressive values.
One of the key features Democratic voters should be looking for in candidates–and not just for president–is their willingness to use power to further the aims of the Democratic Party. Packing the courts–including the federal district courts–is a pretty good litmus test. Right now, professional Democrats seem unable and unwilling to protect their own power in so many ways:
The reason I keep bringing this up is that the fundamental goal of a political party is to gain power through elections. Forget the arguments between conservative, centrists, liberal Democrats, and the Left. If people want to vote for you, for whatever reason, you have to ensure that they can. And the Democratic establishment isn’t making that a priority. They should be screaming this from the roof nationally–Republicans are cheaters (and, if they were smart, tying it in to the Russian situation–go for the lizard brain).
What puzzles me is that professional Democrats aren’t willing to fight for votes. It’s one thing to not fight for voters, but don’t they want votes?
Because, right now, we’re left with this strategy:
Like I said, support for packing the courts is an important test for any Democratic candidate. At some point, those on the left, construed broadly, will begin to view the political system as illegitimate. And we really don’t want to go there.