Since President Franklin D. Roosevelt’s failed attempt to increase the number of justices on the Supreme Court in 1937, “court packing” is widely regarded as a brazen partisan effort.
Given the historical aversion, post-Roosevelt, to court-packing, should Democratic presidential nominee Joe Biden answer forthrightly, if elected, whether he intends to increase the number of justices to the court?
Biden has been steadfast in his non-answer answer, citing that any reply would become the dominant story less than three-weeks before the election. In lieu of a definitive no, doesn’t yes become the de facto response?
There is nothing in the Constitution that suggests the magic number for Supreme Court justices is nine. It has simply been the agreed-upon number by Congress since 1837, with the exception from 1863-1866, when it briefly reached 10.
Those in opposition to the prospects of Biden adding justices have discovered a 1983 video in which Biden declared FDR’s attempt to pack the Court was a “boneheaded idea.” Last year, Biden once again stated his opposition to court-packing. He suggested such efforts might damage the court’s credibility. But this is 2020, and Newton’s Third Law of Motion bears some similarity to this scenario — for every action there’s an opposite and more punitive reaction.
It’s a little late for the opposition to suddenly don their civic britches. Many currently outraged by Biden patently avoiding the court-packing question sat largely in silence when Judge Merrick Garland could not receive an up or down vote in 2016.
Judge Garland was nominated by President Barack Obama to replace the late Justice Antonin Scalia on the Supreme Court. Led by Senate Majority Mitch McConnell, it was deemed that because 2016 was an election year, the next president should make the nomination.
Though there was nothing unconstitutional about McConnell’s actions, it did, in my view, reflect an erratic departure from our democratic norms. The outcome of the Garland nomination did not begin in 2016. Garland was the victim of a bipartisan “death by a thousand cuts” decades in the making. Alas, the court appears on a path, already blazed by the legislative and executive branches, that will result in it becoming irreversibly infected with the malignancy of partisanship.
In 2020, McConnell has ignored the ad hoc rule he imposed against Garland to fast-track the nomination of Judge Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg less than a month before the election.
Ironically, in 2013, McConnell warned Senate Democrats against supporting the “nuclear option” to end the filibuster, “You’ll regret this, and you may regret this a lot sooner than you think.” Though prescient and accurate in 2013, those words may come back to roost in McConnell’s Senate office.
There should not be a mythical statute of the limitations for any president to make a nomination to the Supreme Court. But our democratic norms are too important to only serve at the political whim of one party.
We are careening down a hill paved by arrogance and insularity, leading into the abyss of chaos, while demanding the opposition pull the emergency brake. But the brake was discarded decades ago.
The Barrett nomination has transformed what was once synonymous with Roosevelt’s failed overreach into something that now possesses an air of legitimacy.
Assuming Barrett is confirmed, regardless of which party holds the majority, the Senate will be permanently ensconced in a peevish and retaliatory mentality. It would embody an ethos rivaling President John F. Kennedy’s observations of Soviet Premier Nikita Khrushchev, “We cannot negotiate with people who say what’s mine is mine and what’s yours is negotiable.”
Critics are right to be concerned about the potential impact of packing the court. But they are less than honest, hypocritical in fact, if they wish to opine as if Garland and Barrett do not factor into the equation.
Like Biden in 2019, I too believe packing the court could damage its credibility. But court-packing isn’t the issue; it is a predictable consequence when the Senate systematically usurps the character of our democratic norms for partisan gain.
Where were the voices currently decrying Biden’s possible actions when McConnell unilaterally decided that eight months before the election was inadequate to grant Garland a confirmation hearing, but less than a month would be sufficient to confirm Barrett?
A nation held together by a radical idea is also vulnerable to the adolescence of uber-partisan behavior where one brazen act begets another. As the yarn that holds the legitimacy of the Supreme Court is publicly unraveling, the troubadours of opposition wish to play the tune of restraint as it relates to Biden’s non-answer. What should have been the overture is merely incompetent exit music, performed before an empty theater.
The Rev. Byron Williams (email@example.com), a writer and the host of “The Public Morality” on WSNC 90.5, lives in Winston-Salem.
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