Do NOT use the term "Pack the Court." Our stated goal should be to "Restore" it.
Words matter. "Packing the Court" communicates a blatant partisan political tactic. That's fine with those of us who believe that Democrats need to fight fire with fire and use hardball political tactics to counter Republican hardball tactics, but we don't have to worry about holding onto our support, do we?
I gather we already have a sprinkling of Democratic voices who express concern over doing something extreme like expanding membership on the Supreme Court. I always expect some overly cautious sentiments from at least a few Democrats, but the problem is we will need (depending on the result of Senate races this year) either all or almost all Democratic Senators to abolish the filibuster and then add seats to the Supreme Court. So we have to be mindful of "moderate" concerns.
This may be a case where proper framing makes the difference between a victory and a loss. Assuming Democrats control the majority in the next Senate session, I propose we enact The Supreme Court Restoration Act of 2021. Explicit in its name is the message that Democrats are only seeking to restore the rightful balance to the Supreme Court, approximately what would have been in place had Republicans not acted to "Pack the Court" themselves through inappropriately using their control of the Senate in two raw power plays.
We can rightfully argue that the Supreme Court today would have four left of center Justices and four right of center Justices had Republicans not stood in the way of Obama's appointment of Garland even receiving a confirmation hearing. While we also hold that a vacancy opening up six weeks before a Presidential Election should be filled by the candidate who wins that Election, Republicans seem set on filling that seat with one of their own. Should that happen Right of Center Justices will then outnumber left of Center Justices by Six to Three. When the Supreme Court Restoration Act of 2021 is enacted, Democrats will be able to add two new Justices to the Court, presumably thus shifting the political balance back to a one seat differential, with 6 Right of Center Justices to 5 Left of Center Justices.
There would be nothing radical about such a move. It would restore the rightful political balance to the Court, the one that would have existed had Garland been rightfully seated, even if Republicans now jam through one of their own to replace RBG mere weeks before the Presidential Election. The proposal I am making here is meant to win over wavering Democratic Senators, because without their support there can be no expansion of the Supreme Court to eleven, let alone thirteen or fifteen seats. For that reason, and that reason alone, I further propose that President Biden include Merrick Garland as one of his two picks to add to the Court.
I get that it would be best to add two or more young and unambiguously progressive Justices to the Supreme Court. Under any other circumstances Merrick Garland would not be anywhere near the top of my list of perspective appointments to the Supreme Court. But we don't get to chose our circumstances, they are what they are, and there is a good chance that one or more Democratic Senators defecting will kill whatever chance we have to add any seats to the Supreme Court. That would qualify as an unambiguous loss with major negative consequences for another decade or more. The Supreme Court Restoration Act, with Joe Biden's agreement, will restore the proper handling of Presidential appointments to the Supreme Court. Merrick Garland will finally get his Senate Floor vote, as it should have been.
Democrats can and should argue that, with a new Senate majority and a Democratic President, they could well have "Packed the Court" with four or six new liberal Justices but instead showed restraint, and instead did only what was minimally necessary to Restore the Supreme Court and undo the damage done to it by Republicans. It is not Republican Senators who we need to persuade with this argument, it is a handful of "moderate" Democratic Senators who have to find a way forward to supporting this essential move in the next Congress.
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would be a master stroke.
