Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., in keeping with his might-makes-right operation of the Supreme Court confirmation hearing for Judge Amy Coney Barrett, did not bother on Thursday to adhere to the rule requiring at least two members of each party be present for a confirmation vote. Senate rules are so 2016. Instead, he rammed home a party-line vote moving Barrett’s confirmation to the Senate floor. The least credible and certainly least informative Supreme Court confirmation hearing in my lifetime contains several lessons.
First, “court packing” properly understood was the effort by President Franklin Delano Roosevelt to increase the size of the court to put a stop to the series of highly criticized Supreme Court rulings blocking New Deal legislation. The court did not expand, but Roosevelt nevertheless “won.” Recall that FDR attained his goal of removing an activist court’s impediment to his agenda because in two critical cases the court backed off its assault on the New Deal. Thanks to one justice – Owen Roberts – switching his votes, the court first upheld a minimum-wage law from Washington state that was virtually the same as a New York law it struck down only months before; it then upheld the National Labor Relations Act. No other New Deal legislation was struck down.
With regard to the current conversation on court-packing, the justices are certainly on notice that decisions seeking to invalidate the entire Affordable Care Act or a repudiation of precedent dating back decades will provoke a massive backlash. The New York Times reports that Democrats have laid down their marker:
“Don’t think that when you have established the rule of ‘Because we can,’ that should the shoe be on the other foot, you will have any credibility to come to us and say, ‘Yeah, I know you can do that but you shouldn’t,'” [Democratic Sen. Sheldon] Whitehouse said. “Your credibility to make that argument at any time in the future will die in this room and on that Senate floor if you continue to proceed in this way.”
Senators and aides in both parties took that as a veiled allusion to the possibility that Democrats, should they win the presidency and control of the Senate next month, will end the legislative filibuster or attempt to expand the number of justices on the Supreme Court.
Congress can also, for example, codify abortion rights and gay marriage in federal statute, seek to limit justices’ terms or go after the court’s appellate jurisdiction. It might consider taking the Supreme Court out of cases that involve striking down state laws on constitutional or federal supremacy clause grounds. (Circuit courts and state court applying federal law can resolve those.) Just as Chief Justice John G. Roberts Jr. seems intent on saving the right-wing court from itself (e.g., changing sides in the recent Louisiana abortion case), perhaps Justice Neil M. Gorsuch might see the merit in adhering to precedent if the alternative is a damaged court with more justices but less credibility and less to do.
Second, we should seriously consider doing away with Supreme Court confirmation hearings. Nominated justices do not answer questions. They make disingenuous assertions about their views, which leads only to a loss of respect for them and the court. Senators can review written records, hear from other witnesses and interview the justices privately. We might get more information about nominees that way and, as a bonus, bolster both the Senate’s and the Supreme Court’s reputations by avoiding these exercises in duplicity.
Third, the two political parties revealed exactly what they stand for. Republicans are the party of White-Christian grievance and whining about anti-Catholic bias that was never raised by anyone but themselves. They have also shown little interest in adding racial diversity to the court or looking for justices who have a feel for contemporary American life – especially on race. (In continually citing back to the Founders, Republicans seem to ignore the dramatic reconfiguration of rights brought about by the post-Civil War amendments and the sweeping language, in particular, of the 14th Amendment. Perhaps a textualist such as Gorsuch will see fit to recognize the robust meaning of phrases such as “equal protection.”)
The Republicans quite obviously put a premium on judges willing to pursue an agenda that is at odds with the elected branches and decades of precedent, a complete reversal of the usual conservative pablum about judicial restraint. So long as the Republican Party remains in the thrall of a radical and non-representative sliver of America, Democrats will need to aggressively pursue their agenda in the political branches, using Congress’s power to restrain an activist court, if needed.
Democrats “won” the hearings insofar as they correctly and ably tied Barrett and the Republican Senate to an agenda that frightens most Americans (crippled gun regulation, no Affordable Care Act, imperiled federal abortion rights). If Americans want a country that doesn’t resemble the legal landscape Barrett likely has in mind, it will behoove them to give Democrats large majorities for the foreseeable future.
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