Democrats who promote adding justices to the Supreme Court want to do so because they don’t like the current originalist majority. They didn’t try to do this in the past when the liberal members of the court held sway. Their threat to pack the court they call “illegitimate” with up to five more justices is a terrible idea regardless of party.
One would think that Democrats had learned their lesson when former Senate Majority Leader Harry Reid used the so-called “nuclear option” in 2013, by reducing the cloture threshold from 60 votes down to a simple majority. That new rule applied to confirmation votes for federal judges, but not for Supreme Court justices. Then during the Trump administration in 2017, Majority Leader Mitch McConnell and the Republican majority used another nuclear option to remove the barrier for U.S. Supreme Court justices. They also refused to even consider former President Obama’s late term nomination of Merrick Garland, and the rest is history.
In response, Democrats on the Senate Judiciary Committee turned confirmation hearings into media circuses, especially for Justices Brett Kavanaugh and Amy Coney Barrett. But prior to recent Senate behavior, right-leaning Chief Justice John Roberts’ confirmation vote was 78-22. Left-leaning Ruth Bader Ginsburg had been approved 96-3 in 1993, and likewise the liberal Justice Sonia Sotomayor was approved 68-31 and liberal Justice Elena Kagan 63-37. But gone are the days of mutual respect and congeniality. Justice Neil Gorsuch was approved with only three Democratic votes. Kavanaugh received only one Democratic vote, and all 47 Democrats voted against Barrett. President Biden has had one opportunity to nominate a new justice, and that was Justice Ketanji Brown Jackson, who received Republican support from only Sens. Romney, Collins and Murkowski, all three of whom are known to be centrists.
The point to be remembered is that elections have consequences. When we cast a vote for president, we are also casting a vote for his or her power to make nominations to the federal judiciary. But rather than allow democracy to run its course, there are those who want to subvert the process by having the Congress pack the court for no other reason than to offset the impact of the current majority. That is nothing more than partisan politics run amok, no matter which party does it. Democratic Party Majority Leader Chuck Schumer stood outside the Supreme Court and said, “I want to tell you Gorsuch. I want to tell you Kavanaugh. You have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” That is the most appalling thing this writer has ever heard a congressional leader say to the court. If there have been others, they belong in the same hall of infamy.
Roberts responded correctly by saying, “Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous.” Since then, the nation has witnessed noisy protestors for weeks on end outside the homes of some of the justices and one possible attempt at an assassination. Do we really want to live in a country where American courts allow outside agitators and protestors to influence their deliberations and decisions? The distance between that and mob rule is a short one.
Would the Brown v. Board of Education decision in 1954 have been reached in the conclusive way it was (9-0) if there had been hordes of angry segregationists mobbing the Supreme Court and harassing justices in their own homes? Would Thurgood Marshall, who argued successfully for 14th Amendment equal protection in Brown, have been or felt safe whenever he left the building?
When obsession sets in, the madness of crowds takes over, which is exactly what we witnessed on Jan. 6, 2021, at the Capitol. Less seriously, but no less appalling, there were people pounding on the doors of the Supreme Court after the Kavanaugh confirmation, and during the hearings, noisy protestors came in and disrupted the proceedings repeatedly.
Justice Clarence Thomas is age 75 and Justice Samuel Alito is 73. Roberts and Sotomayor are both 69. It is possible that the next president will be making one or more nominations. Thereafter, neither side should seek to upend our Constitutional system of checks and balances by engaging in partisan court packing. To do so would turn the U.S. Supreme Court into a mere subordinate and a dependent vassal of any future U.S. Senate majority. When politicians like Schumer warn about “threats to democracy,” we should consider how often partisans become the very thing that they seek to destroy.
Joseph Filko has taught American government and economics, and lives in Williamsburg. He can be reached at jfilko1944@gmail.com.
