On 10/13/20, Miriam Vieni <miriamvieni@xxxxxxxxxxxxx> wrote:
Court Expansion Is an Easy AnswerWhile our poloticians bicker and call one another names that would
By David Sirota, Andrew Perez and Julia Rock, The Daily Poster
13 October 20
To court pack, or not to court pack? This is the question that Democrats
are
trying to avoid answering - even though Republicans have been successfully
packing the courts for years.
As the GOP races to try to install Amy Barrett to the Supreme Court before
the election, Joe Biden and most competitive Democratic Senate candidates -
other than one - are running away from queries about whether they would
support expanding the court.
Republicans have not suffered from such equivocation - instead, they have
for years tried to pack the courts, both through contraction and expansion.
In Washington, they have pushed to shrink the courts and they have blocked
Democratic presidents from filling judicial appointments - moves designed
to
increase the power of GOP-appointed judges already on the bench. In states,
Republicans have pushed to expand the courts to increase their number of
appointees.
At the Supreme Court level, Republicans stole a majority when they denied a
hearing for President Barack Obama's Supreme Court choice for 293 days
before Trump took office, and placed Neil Gorsuch on the courts. They
minted
a more conservative majority with Brett Kavanaugh. Amy Coney Barrett and a
6-3 balance on the court, arriving via a grim bit of luck, would just be
the
icing on a decades-long, ultra-conservative majority that threatens
Americans' reproductive rights, voting rights, labor rights, health care
rights and civil rights.
If Democrats have any interest in protecting Americans' fundamental rights,
they only have a few options. They can try using parliamentary tactics to
successfully block Barrett's nomination, which Senate Democrats have been
reluctant to do, and they can add more court seats later. This is reality,
and it is precisely why Democrats are getting so many media questions about
adding court seats.
The easiest way to talk about whether to expand the court is to cast it as
an issue of values and policies that people actually care about. If - as
they insist - Democrats are firmly committed to protecting reproductive,
voting, labor, health care and civil rights, it shouldn't be difficult for
any Senate candidate to say they will consider all options available to
protect them, including expanding the court.
In that sense, Democratic support for expanding the court is synonymous
with
supporting popular, essential liberties like a woman's right to choose,
workers' right to form unions and Americans' right to not be thrown off
their health insurance because they have a pre-existing health condition.
By contrast, Republicans only want to talk abstractly about process and
court size and not about policy - because their judicial nominees'
opposition to abortion rights, health care protections and union-rights are
wildly unpopular.
Adding court seats to the Supreme Court is just one more area where
Democratic politicians are lagging to the right of their voters. A
Marquette
University poll taken shortly before Supreme Court Justice Ruth Bader
Ginsburg's death found that 61 percent of Democratic voters support
increasing the size of the court. Support for Democrats' 2010 health care
law, the Affordable Care Act - which the Supreme Court could strike down
next year - is at a record high.
Creating More Questions By Refusing To Answer Questions
As Democrats try to avoid answering questions about the court, they've
ended
up stumbling into more media questions about packing the court - the thing
they're actively trying not to talk about - while sounding evasive.
"They'll know my opinion on court-packing when the election is over,"
former
Vice President Biden said last week when reporters asked him about adding
seats to the Supreme Court. He added: "Now, look, I know it's a great
question, and y'all - and I don't blame you for asking it. But you know the
moment I answer that question, the headline in every one of your papers
will
be about that."
When a local reporter in Las Vegas told Biden that adding court seats is
"the number one thing that I've been asked about from viewers," Biden
responded: "Well, you've been asked by the viewers who are probably
Republicans who don't want me continuing to talk about what they're doing
to
the court right now."
Democratic Senate challengers in key swing states -- Jaime Harrison in
South
Carolina, Cal Cunningham in North Carolina, Mark Kelly in Arizona, Jon
Ossoff in Georgia, Theresa Greenfield in Iowa, Sara Gideon in Maine, and
John Hickenlooper in Colorado -- have said outright that they oppose adding
judges to the court, or attempted to dodge the topic.
One Democratic Senate Candidate Gets It Right
At least one Democratic Senate candidate seems to understand the situation:
Over the weekend, Montana's Democratic Gov. Steve Bullock said that if he
is
elected to the Senate, he would consider expanding the Supreme Court.
Here's
a snippet of the Associated Press report:
Bullock rejected the confirmation process of Judge Amy Coney Barrett to the
U.S. Supreme Court, saying it could put parts of the Affordable Care Act in
jeopardy. Daines has expressed support for a court case seeking repeal the
health law, which is set to be heard by the court days after the Nov. 3
election.
Bullock said that if Coney Barrett was confirmed, he would be open to
measures including adding justices to the bench, a practice critics have
dubbed packing the courts.
"We need to figure out the ways to actually get the politics out of the
court," Bullock said. "That's anything from a judicial standards
commission,
or we'll look at any other thing that might be suggested, including adding
justices."
Republicans were quick to attack Bullock for this position, but there is
little evidence that the exact number of justices on the court is some
top-of-mind concern among voters. There's absolutely zero evidence that
voters want the Supreme Court stuck at nine justices, even if that means
those justices doing wildly unpopular things, like throwing out protections
for pre-existing medical conditions.
"The Number Of Supreme Court Justices Is Not Fixed"
Of course, any legislation to expand the court will inevitably be met with
GOP claims that Democrats are violating the constitution. However,
expanding
the court is totally consistent with the Congress's enumerated powers.
"Under the Constitution, the number of Supreme Court Justices is not fixed,
and Congress can change it by passing an act that is then signed by the
President," wrote Scott Bomboy, the executive director of the National
Constitution Center. "Article III, Section 1, starts with a broad direction
to Congress to establish the court system: 'The judicial Power of the
United
States, shall be vested in one supreme Court, and in such inferior Courts
as
the Congress may from time to time ordain and establish.'"
Over two centuries, the court's size has been adjusted. If the founders
wanted the court permanently set at nine justices, they would have put that
into the Constitution. They didn't. They gave Congress the flexibility to
adjust the court's size. That power allows the legislative branch to make
sure that the court doesn't become a star chamber totally disconnected from
public will.
In light of that, if a Democrat like Bullock can make a sober-minded case
for court expansion in a deep red state like Montana, then any Democratic
candidate should be able to make a similar case.
Refusing to make that case - or running away from questions about court
expansion - is not just cowardly, it is politically stupid. It forsakes an
opportunity to turn a conceptual battle over the Supreme Court into a much
more tangible, down-to-earth battle over policies that affect people in
their daily lives.
Republicans don't want to talk about those policies, but Democrats should.
