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The confirmation of Supreme Court Justice Amy Coney Barrett, just eight days before the Nov. 3 election, was another blow to an already damaged process for federal judicial nominations.
Sen. Susan Collins, the only Senate Republican to oppose Barrett’s confirmation, accurately noted that the process was unfair and inconsistent with how her party handled Merrick Garland’s nomination in 2016. It was another step backward in the hyper-politicization of the courts, particularly the Supreme Court, something Collins lamented in her 2018 floor speech supporting Justice Brett Kavanaugh.
“Our Supreme Court confirmation process has been in steady decline for more than 30 years,” Collins said two years ago. Things only got worse this week.
The solution or solutions to this spiral escapes us, but we’d be willing to bet that expanding the size of the Supreme Court in response to this latest escalation, as some on the political left have suggested, won’t improve the situation. We say that even with the understanding that Senate Republicans have unhinged themselves from any meaningful notion of consistency or fairness with how they handled Barrett’s flawed confirmation.
In that sense, Democratic presidential candidate Joe Biden’s proposal to create a bipartisan commission to study potential Supreme Court reforms could provide an opportunity for a measured review of different ideas. Those may include proposals on changing the size (either increasing or decreasing) of the court, as Congress had done multiple times in the past; the scope of its power; term limits for justices; and how the Senate processes nominations.
While Biden’s suggestion seems a bit like a careful dodge from directly answering questions about court packing, it could actually lead to a much-needed debate if structured correctly. And he has registered hesitation about expanding the court specifically.
The U.S. Senate, and the country in general, are in desperate need of a concerted effort to actually improve the judicial nominations process, and to stop punishing each other for past mistakes, such as unilaterally ending the filibuster for judicial nominations. Perhaps this could be a launching point.
Sara Gideon, the Democratic candidate running against Collins, has rightly expressed doubt about whether expanding the size of the court could help depoliticize the situation. Interestingly, she has also supported the idea of reinstating the judicial filibuster requiring 60 votes, an idea that may run counter to more immediate goals of her party but could be a much-needed correction toward a less partisan judicial nominations process.
That kind of thinking, to prioritize a better process over political retribution or power, which Collins also demonstrated this week, is desperately needed from both parties moving forward.
Following Barrett’s confirmation, Gideon also accused Republicans of court packing over the past four years as President Donald Trump has nominated and the Senate has confirmed hundreds of federal judges, usually with support from Collins.
But we can’t forget how we got here. Senate Republicans have been able to confirm so many judges in no small part because Democrats went nuclear on nominations seven years ago in response to Republican obstruction. Democrats got rid of the filibuster on most judicial nominations, and then Republicans extended it to Supreme Court nominations. We wouldn’t be where we are today without those successive decisions to escalate and retaliate.
In a late night speech on the Senate floor Sunday night, Sen. Angus King seemed to leave the door open to packing the court.
“I don’t want to pack the court. I don’t want to change the number,” he said. “I don’t want to have to do that, but if all of this rule-breaking is taking place, what does the majority expect?”
But King further told CNN on Monday that, “I don’t think two wrongs make a right.”
When a needed discussion on reforming the Supreme Court nomination process begins, we hope the philosophy that King espoused on CNN finally rules the day, regardless of which party controls the Senate in January.
Correction: This editorial has been updated to correct the year that Brett Kavanaugh was appointed to the Supreme Court.