With the prospect of President Donald Trump putting a third constitutionalist justice on the Supreme Court, the idea of court-packing is being revived by panicked Democrats.
But, as the late Justice Ruth Bader Ginsburg herself once put it, court-packing is a “bad idea.”
Connecting the dots
The revered liberal justice passed away just before the weekend, thereby creating a vacancy in the Supreme Court just before the presidential election. President Trump has since indicated that he will fill that vacancy, and Senate Majority Leader Mitch McConnell, for his part, has said that he will initiate the confirmation process once Trump’s nominee is submitted.
In other words, the normal thing that happens when a Supreme Court vacancy occurs is happening. The problem, however, is the proximity of the vacancy to the upcoming general election. And Democrats are trying to use what happened in 2016 against Trump and the Republicans.
The reader will likely remember that in 2016 we had a similar situation: Antonin Scalia passed on creating a Supreme Court vacancy. Many, including then-candidate Trump, argued that Obama ought not to name a replacement, that, instead, the decision ought to be left to his successor.
It didn’t make much of a difference, either way, because the Senate was controlled by Republicans, and McConnell, at the time, made it clear that he would not allow a vote on Obama’s candidate. We know what subsequently happened.
But, Democrats are now claiming that the present situation is analogous to 2016 and that thus Trump ought to let the winner of the general election name Ginsburg’s replacement. This ignores the fact, of course, that the situation is not analogous — in 2016, the Senate and White House were held by opposing parties, while in 2020, Republicans control both.
What this means is that Trump and McConnell are going to work to nominate and confirm another justice to the Supreme Court, and there isn’t a whole lot that the Democrats can do about it. Hence, they’re turning to court-packing.
The “bad idea”
Some Democrats are arguing that Trump, by nominating a replacement for Ginsburg, is stealing a Supreme Court seat for Republicans. In order to fix this, these same Democrats argue that, when a Democrat next becomes president, he or she ought to pack the Supreme Court.
It’s an old idea that dates back to the presidency of Franklin D. Roosevelt. In 1937, he tried to get legislation passed that would increase the number of Justices on the Supreme Court. That’s one way to get more of your own on the Supreme Court. But, Ginsburg, herself a staunch liberal, saw the problem with such a plan.
“Bad idea when [FDR] tried to pack the court… If anything would make the court appear partisan it’d be…one side saying, ‘When we’re in power we’re going to enlarge the number of judges so we’ll have more ppl who will vote the way we want them to,” Ginsburg said, as seen in a resurfaced video clip.
Trump and McConnell are going to move ahead with a nomination and confirmation. Then, one day when Democrats are back in power, the question will be whether the Democrats will heed the advice of Ginsburg or whether they will ignore her and give FDR’s “bad idea” another go.