Vice President Pence pressed Senator Kamala Harris during their recent debate on whether a Biden Administration would “pack the court” in retaliation for Trump’s third Supreme Court nomination, the latest of whom, Judge Amy Coney Barret, will face her Senate confirmation hearing starting today.
The idea behind “packing the court” is that Democrats, should they win the Senate and White House this November, would increase the number of Supreme Court Justices from nine to thirteen to rebalance the Court’s super-majority conservative tilt from 6–3 (if Barrett wins confirmation) to 7–6 (with four moderate Biden appointees).
There is legitimate anger at Senator Mitch McConnell for denying Judge Merrick Garland’s nomination from being heard on the baseless theory that the voters should decide by choosing the next President. It is also hypocritical that Sen. McConnell blocked Garland on that theory when the election that was nine months away but is pressing full steam ahead with Barrett’s nomination with votes already being cast for the Presidential election. There is alarm that Trump has urged her nomination to decide election disputes that might arise in an election that the President has repeatedly called rigged without evidence.
There is also legitimate anger that Sen. McConnell held up 88 district and 17 court of appeal nominations under Obama, and under Trump has declared filling the court vacancies the most urgent priority.
Put aside politics for the moment, there is also a legitimate health concern as two Senators sitting on the Senate Judiciary Committee have been infected with the coronavirus. Sens. Joni Ernst and Kamala Harris have sensibly called for all Members of the Committee to be tested before the hearings. The call for testing should be extended to all staff, guests in attendance and the nominee herself. While Judge Barrett has already had Covid-19, she attended the super-spreader event at the White House where her nomination was announced and should be re-tested. If Sen. Lindsey Graham refuses to be tested, as he did before a debate against his political opponent in South Carolina, Senators should seek an injunction to stop proceedings until testing is done.
There is no law that governs the timing of judicial nominations. Democratic norms have guided process in the past. Presidents of either party are entitled to nominate judges and Justices and the Senate should confirm those nominees, regardless of philosophical bent, so long as they are serious, probative individuals who will approach their position with fairness and objectivity. Sen. McConnell has tossed those norms out the window, in the same way he blocked President Obama’s legislative priorities and is sitting on the more the 400 bills passed in the House, many with bipartisan support. As I’ve written before, Sen. McConnell has bulldozed our democracy.
Political retaliation, or the appearance thereof, however, is not the way to resolve the questions regarding our courts. A sober, balanced approach is. There are two questions that should be addressed.
The first question should be whether the courts have sufficient capacity to address the volume of cases before it. The Judicial Conference of the United States, the policymaking body of the federal courts, makes biennial recommendations to Congress that identify any circuit and district courts that require new permanent judgeships to appropriately administer civil and criminal justice in the federal court system. In March 2019, the Judicial Conference recommended adding five judgeships for the U.S. Court of Appeals for the Ninth Circuit and 65 U.S. district court judgeships, as well as converting 8 temporary district court judgeships to permanent status.
In modern history, Congress has increased the number of judgeships in 1978, 1982, 1984 and 1990, the last year in which it authorized an increase. The next Congress should follow the Judicial Conference’s newest recommendations due to be published in March 2021.
The next Administration or Congress should also review the size of the U.S. Supreme Court. According to law professor Jacob Russell, the Supreme Court grants hearings for only 80 out of 8,000 cases each year. He argues “a larger docket would…allow a uniform national resolution of more disagreements between regional circuits.”
Conservative legal scholar Jonathan Turley has called for increasing the number of Supreme Court seats to nineteen, not eleven or thirteen, making it more comparably sized to our circuit courts of appeal. Open positions could be filled two per Presidential term, to reduce politicization, and the concern about “court-packing,” until the Court seats nineteen Justices after five Presidential terms.
The second question is how to ensure judicial experience and reduce politicization. Trump has come under fire for nominating judicially inexperienced individuals. The American Bar Association has rated nine of his nominees as “not qualified.” There are many others with troubling records on voting rights, women’s rights, corporate immunity, unitary executive authority, gun safety and health care — questions that go to the core of our democracy and liberty.
Congress could legislate qualifications for judicial nominees, including required years of experience and types of relevant experience. Supreme Court nominees might be required to have had significant prior judicial experience. Congress could set a minimum age for judges and Justices.
Congress should grant the Judicial Conference the power to review complaints against Supreme Court Justices. It was of grave concern when Justice Scalia refused to recuse himself in a complaint against Vice President Cheney having spent the weekend with him hunting. There are 83 ethics complaints against Justice Brett Kavanaugh that the Judicial Conference refused to review claiming it has no jurisdiction over the Supreme Court. Congress should also review the complaints against Kavanaugh and demand the background information that the Trump Administration refused to hand over during his confirmation hearing to assess whether any action is warranted.
Chief Justice Roberts and the current Supreme Court should adopt a voluntary code of term limits, requiring Justices to move to senior status after eighteen years of service. If applied retroactively, it would apply to only Justices Thomas and Breyer. It could also be applied instead to all nominees going forward. The Constitution does not require lifetime appointments. Congress could also regulate in this sphere. Limiting terms would countenance against nominating younger candidates in favor of those with greater experience. Clarity around judicial vacancies would help refresh the courts and possibly reduce some of the politicization.
The debate about whether the Democrats will pack the Supreme Court is a misdirection. If anything, Sen. McConnell has packed the Courts and the Democrats now must find a way to unpack the courts and restore balance. The path to judicial balance should be guided by the needs of the courts, ensuring that the highest caliber candidates are nominated and preserving the objectivity and the sobriety that is expected of them. The courts are indeed on the ballot this November.