How the Democrats Could Thwart Trump's Supreme Court Takeover
When it comes to filling vacancies on the Supreme Court and lower courts, the Democrats have played nice for far too long.
DAVID FARIS
05.11.18 10:39 PM ET
If you’re a Democratic partisan, the name Merrick Garland probably still makes your blood boil. And it should. As the Supreme Court prepares to issue verdict after verdict that will further entrench conservative power in the United States, the far-reaching effects of Mitch McConnell’s darkly clever Garland hold-up will only become more shocking and problematic. The most galling fact is this: in any sane political system, conservatives would be in the minority, both on the Supreme Court and in the rest of the federal judiciary. And the next time they are in power, Democrats must rectify this injustice by adding seats to the Supreme Court and radically enlarging the federal judiciary, filling those slots with the most outrageous liberals they can find.
Why? The Democratic candidate has won a popular vote majority in six of the last seven presidential elections. Over that same time period, Democrats have secured 30 million more votes for the U.S. Senate than their Republican counterparts. In 2016 alone, Hillary Clinton won the popular vote by nearly 3 million votes, and Democratic candidates received 11 million more votes for the Senate. The record here is clear: Over the past 26 years, the American people have voted, over and over again, to give Democrats the authority to staff the federal judiciary with living constitutionalists, and instead what they have received is a Supreme Court that remains in the death grip of a radical, conservative majority and lower courts that have flipped back and forth between Democratic and Republican appointees. Here, as in so many other ways, American democracy has misfired by hewing to institutions and procedures cooked up over candlelight a hundred years before the invention of the internal combustion engine.
These results on their own are a problem, as they represent a significant disjuncture between the wishes and desires of the American people as a whole and the results of U.S. elections. But Republican elites have compounded the problem by escalating the existing tit-for-tat court wars to unheard of new extremes. By some estimates, Republicans blocked as many appointments to the federal judiciary between 2009 and 2013 as had ever been held up in the long history of the United States. Faced with this brazen violation of the Constitution’s spirit, Democrats took the sensible step of eliminating the judicial filibuster in 2013 so that President Obama could fill routine openings on the federal courts with simple majority votes in the Senate. And then in 2016, Republicans responded by obliterating all modern precedent by refusing to even debate the nomination of Garland, President Obama’s pick to fill the seat of the late originalist Antonin Scalia.
Many Democratic elites will be reluctant to pursue a court enlargement scheme, for good reason. Court packing is a classic authoritarian maneuver used by aspiring dictators who seek to consolidate their power by dismantling democratic institutions. Most recently, Hungarian Prime Minister Victor Orban forced judges into retirement, stripped the Constitutional Court of its jurisdiction over certain matters, and packed the court with appointees from the ruling Fidesz Party. Orban was not trying to rectify electoral injustice, but rather to aggrandize power for himself and his allies. In political science, this process is known as “democratic backsliding.” With far-right parties on the rise in Europe, and with Republicans in Washington bent on eroding norms and constitutional restrictions on their power, there is newfound popular interest in how democracies fall apart. Earlier this year, the august, non-partisan Freedom House lowered America's score on its benchmark index of democracy, yet more evidence that U.S. democracy is in peril. Would enlarging the courts contribute to the unraveling of the republic?
Not necessarily. Just because a maneuver is reminiscent of authoritarianism does not mean that it should be automatically out of bounds under all circumstances. And the reality is that it is Republicans who have been treating the federal judiciary like aspiring Orbans and Erdogans for the better part of two decades. Ask yourself a question: what is the functional difference between stealing the swing seat on the Supreme Court and adding justices? Both have the same result: flipping the majority from appointees of one party to another. What Republicans did in 2016 was every bit as transgressive and cut-throat as anything attempted by elected authoritarians seeking to take apart the architecture of democracy piece by piece. This act of thievery will soon result in a major blow to organized labor, depriving workers of critical rights and the Democratic coalition of a key institutional force for election turnout. Yet everyone in the Republican Party went blithely along with this act of sabotage, because they gambled that they would get away with it, and they were proven correct.
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