For several months, the left wing of the Democratic Party has been flirting with the idea of increasing the size of the Supreme Court if Democrats gain control of Congress and the presidency in 2020.
Now the idea of “packing the court” (as President Franklin D. Roosevelt tried to do in the 1930s) has attracted the interest if not necessarily the endorsement of some Democratic presidential hopefuls. Former U.S. Rep. Beto O’Rourke has even floated the idea of a 15-member court.
“What if there were five justices selected by Democrats, five justices selected by Republicans, and those 10 then pick five more justices independent of those who chose the first 10?” O’Rourke mused the other day. “I think that’s an idea we should explore.”
More likely — or less unlikely — a Democratic-controlled Congress would enlarge the court by two seats and a Democratic president would duly fill those vacancies with reliably progressive nominees. That would obliterate the conservative majority secured when President Trump belatedly replaced the late Justice Antonin Scalia with Neil Gorsuch.
Even in its stripped-down form, court packing is an idea the Democrats can accomplish only when they control both the executive and legislative branches. (On Tuesday, Trump said that the court wouldn’t be enlarged on his watch. Thank you, Captain Obvious.)
But court packing is something the Democrats shouldn’t even be talking about. It’s a thoroughly bad idea, and not just because it might set off a perpetual-motion machine of tit-for-tat expansions every time power in Washington changes hands.
Court packing would further politicize a Supreme Court that is already viewed as a partisan institution, and it would violate the norm that change in the court’s membership is accomplished gradually through the replacement of individual members, not by ideologically engineered expansion.
Granted, Senate Majority Leader Mitch McConnell, R-Kentucky, and other Republicans trashed a different norm in 2016 when they refused even to hold a hearing on Merrick Garland, President Obama’s nominee for the seat that eventually went to Gorsuch. Obama was entitled to Senate consideration of his nominee even in a presidential election year. (The same would have been true if a Republican president had nominated someone to the court in an election year and Democrats had controlled the Senate.)
But part of what makes respectful consideration of Supreme Court nominations a norm is the recognition that federal judges aren’t tools of the presidents who appoint them. Otherwise, justices appointed by the same president always would agree.
This was the point Chief Justice John G. Roberts Jr. was trying to make when he reminded President Trump last year that “we do not have Obama judges or Trump judges, Bush judges or Clinton judges.”
Trump disagrees, but so do Democrats who believe that the Scalia seat was “stolen” from Obama — as if Garland was just another presidential patronage appointee who would do his benefactor’s bidding.
Obviously it matters in some politically charged cases whether a justice is nominated by a Democratic president or a Republican one. As I wrote in November, Roberts’ “no Obama judges” sermon was a little simplistic. Still, there was a time — not all that long ago — when Supreme Court nominees (and other judicial nominees) received significant bipartisan support in the Senate.
That started to change well before McConnell’s blocking of Garland, and it has continued since then. You can’t blame the mistreatment of Garland on the fact that 22 Democratic senators (including Obama) voted against the confirmation of Roberts in 2005. Even more Democrats — 40 — voted against the 2006 confirmation of Justice Samuel A. Alito Jr., another George W. Bush nominee. And after Obama took office, Senate Republicans returned the favor by largely opposing the nominations of Sonia Sotomayor and Elena Kagan.
Returning the confirmation process for Supreme Court nominees to a semblance of bipartisanship and comity won’t be easy, and Republicans deserve a disproportionate share of the blame for the current situation. But it will be even harder to restore those values if the Democrats make partisan court packing part of their platform.
Michael McGough is the Los Angeles Times’ senior editorial writer, who is based in Washington, D.C.