Packing The Court Needs To Be A Mainstream Democratic Position

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.

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5 Responses to Packing The Court Needs To Be A Mainstream Democratic Position

  1. Min says:

    “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?”

    Judging from their actions and inaction over recent years, no they don’t. (Yes, We Can! No, We Won’t.) It does seem strange. The Republicans are doing all they can to prevent minorities from voting, or from having their votes count. What is the Democratic response? Let’s increase turnout. Why not voter registration drives, like the civil rights movement held in the South? Because, despite the fact that poor people are much more likely to vote Democratic than Republican, Democratic donors don’t want them to vote. Both parties are plutocratic. The Democrats are Republicans Lite. That’s why they don’t fight for votes.

  2. The political system has been entirely illegitimate since Reagan’s campaign for the Republican nomination in 1979-80. If you do not wish to take my word for this, then ask any one of his voters.

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  4. Carleton Wu says:

    Of the concern that, once broken, the system will never be fixable: on the one hand, as you point out, it’s already broken.
    One possible option here (if the Dems have all three branches) would be to pass legislation to pack the court (say, set 22 year terms, 11 justices, each Pres gets to appoint 1, in years 1 and 3). In that legislation, mandate that all the GOP justices will be the first to retire, followed by the Dem appointees. Then put forward a constitutional amendment with the same structure, but with first-in-first-out – thus giving the GOP strong incentive to fix the new structure in place rather than hoping to break it again once they’ve got all three branches.
    [Id be remiss if I didn’t also mention my proposed advise-and-consent rule: Presidents would need 2/3rd of the Senate to seat a judge for 22 years- but if rejected, they can place them on the court with no Senate vote- but for only 11 years. Thus both sides get an incentive to cooperate, rather than the Constitutional error of relying on the Senate to “do the right thing”.]

  5. Ed says:

    Yes, do what the other side does because both sides are the same.

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