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Supreme Court Packing--Or Let's Make A Deal

Submitted by Robin Messing on Sun, 10/11/2020 - 4:59pm

The Republicans are hammering Joe Biden hard on his refusal to state whether he will increase the number of Justices on the Supreme Court. The Constitution says nothing about how many Justices should be on the Court, and the number has been as few as 6 and as many as 10 in the past. However, the number of Justices has stood at 9 since 1869. Democrats have threatened to increase that number should Biden become President and they take the Senate in order to compensate for the GOP's bad faith refusal to even give Merrick Garland a hearing when Obama nominated him more than 8 months before the 2016 election while rushing to confirm Amy Coney Barrett's nomination even though it was made less than 2 months before the current election. Biden's refusal to say whether he will, in the GOP's phrasing, "pack the court", is likely to cost him a fair number of votes. At least, that's what the Republicans are counting on.



Reframing The Debate


I suggest we reframe the debate and make an offer that will force the Republicans to play defense on this issue.  First, let's remind the Republicans that they ruthlessly blocked over a hundred judicial nominations during the last TWO YEARS of the Obama Administration, leaving the seats open to be filled by a future Republican President. Watch Mitch McConnell laugh at how he threw a monkey wrench into the judicial nomination process. It is a laugh worthy of a James Bond villain.




Elliott Downing made a brilliant suggestion for reframing the debate--Democrats must not talk about packing the Court. We should talk instead about balancing the court.




Let's Make A Deal


Why is Donald Trump and the Republicans hell-bent on trying to push through ACB's confirmation process before the election? Trump let the cat out of the bag when he said the quiet part out loud. The New York Times reports that Trump expects that the outcome of the election will be decided in the Court.


“I think this will end up in the Supreme Court,” Mr. Trump told reporters at a White House event on social media, adopting an argument for quick action made by his ally, Senator Ted Cruz, Republican of Texas. “And I think it’s very important that we have nine justices,” instead of the eight seats currently filled.


The president again asserted without evidence that Democrats were trying to rig the election and said he wants a high court that will agree with him. “This scam that the Democrats are pulling — it’s a scam — the scam will be before the United States Supreme Court,” Mr. Trump said. . . .

Mr. Trump made clear he is counting on whomever he appoints for Justice Ginsburg’s seat to support him and that he wants to be declared the winner by an overwhelming majority if the results go to the Supreme Court.

“And I think having a four-four situation is not a good situation, if you get that. I don’t know that you’d get that. I think it should be eight-nothing or nine-nothing. But just in case it would be more political than it should be, I think it’s very important to have a ninth justice.”


This raises the obvious question of whether there is a quid pro quo between Trump and Barrett. Did Trump appoint Barrett with at least the implied, if not explicit, understanding that she would help him win the election should the issue come before the Supreme Court? ACB should recuse herself in order to avoid the appearance of corruption, but so far there are no indications that she will do so. The way to force a recusal AND to take the issue of court balancing off the table is to propose a deal with the Republicans.


Biden should promise not to balance the Court if Republicans hold off on voting for Amy Coney Barrett's confirmation until after the election.  She must also swear under oath that if she does get approved after the election that she will recuse herself if the question of who won the election comes before the Court. She should agree to this for two reasons.


  1. As mentioned already, if she does not recuse herself then her participation in the decision will look like there was a quid pro quo for her appointment by Trump. The last thing she or Trump should want is for at least half the country to believe that Trump’s presidency is illegitimate. (Oh, hell--who am I kidding. The LAST thing Trump wants is to lose the election because he knows he will be hit with indictments up the wazoo the minute he is out of office. Therefore, he'll happily settle for having his presidency seem illegitimate if that is what it takes to stay in power.)
  2. If hers is the deciding vote in favor of Trump then her vote will not only tarnish Trump's legitimacy; it will tarnish the legitimacy of the Supreme Court as well. 


Biden would give up very little in making this deal. Balancing the court--or court packing as it is most often referred to--is very unpopular as you can see in the following video.



The odds are ACB is going to be confirmed one way or another, by hook or by crook. The Democrats might be able to slow the nomination down a little, but there is nothing they can do to stop it. By making this proposal, Biden will be putting the ball in the Republican’s court. Instead of Biden being on the defense on this issue he can take the offense. It will put him in a stronger position to accuse Trump and ACB of having made a quid pro quo deal if Trump howls like a hyena getting a tooth pulled without Novocaine and if ACB and the Republicans refuse to go along.


But what if ACB lies? What if she promises under oath to recuse herself and then votes to declare Trump the winner of the election when the case comes before the Supreme Court? If she does this then she will have laid the foundation for impeachment and indictment the moment enough Democrats are elected to enforce the rule of law.