I made a video a couple weeks ago on my thoughts on court packing, whether Democrats are going to pursue adding new justices or pursue some other reforms, and the Supreme Court isn’t necessarily as visible as Congress or obviously the White House, but it still plays a really important role in the government, and as we saw during the Trump administration a few justices retiring or passing away during a particular four-year or eight-year period can completely change the makeup of the court for a longer period of time.
So I thought I would make a video covering why the Supreme Court has become so politicized over the last several years, why both parties have started being more aggressive with blocking confirmations, and what kinds of reforms are likely during the Biden administration to start turning a corner and hopefully make the Court less tied to partisan politics.
If you’re just stepping into this issue in 2021 you’re probably seeing a lot of Republicans saying that Democrats are being unfair, they’re damaging the integrity of the Court, et cetera. But at the same time Democrats are going to point to some past Republican actions and say the same thing, and I think that context is really important when it comes to the current proposals, whether that’s expanding the court or pursuing more moderate reforms.
Merrick Garland Controversy
Ultimately I think the current situation with the Supreme Court goes back to the Merrick Garland controversy, some of you may remember that at the end of the Obama administration. So Justice Antonin Scalia, who was nominated by Reagan and confirmed unanimously by the Senate in 1986, passed away on February 13th, 2016, roughly nine months before the 2016 election and eleven months before the inauguration in January 2017.
This set up a big conflict over the future of the Court, Republicans had regained the Senate majority in the 2014 elections, so they had a lot of control over these nominees, and at this point you needed a 60-vote supermajority to confirm a Supreme Court nominee in the Senate, so Obama wasn’t necessarily going to get his first choice here, he ended up nominating Merrick Garland who was widely perceived as relatively moderate, although some conservatives would disagree with that. But Senate Republicans went further than just hard negotiating tactics here, they refused to hold confirmation hearings for Merrick Garland at all, they simply weren’t going to consider any nominees until after the election, which again was roughly nine months after the death of Justice Scalia.
McConnell wrote a joint op-ed with Republican Senator Chuck Grassley a few days later, let me read from that: “Rarely does a Supreme Court vacancy occur in the final year of a presidential term, and the Senate has not confirmed a nominee to fill a vacancy arising in such circumstances for the better part of a century.
So the American people have a particular opportunity now to make their voice heard….we don’t think the American people should be robbed of this unique opportunity.” They weren’t the only ones making that point, this was essentially the default position in the Republican party at that time, that nominees should not be confirmed in an election year because that would take a voice away from the American people.
2016 Election & Nominees
This standoff lasted through the 2016 election, of course the Republican Senate agreed to consider Trump’s nominees after his inauguration, but the 60-vote requirement was going to be a big problem for them now that they had, in the Democrats’ view, walked away from the negotiating table rather than working together in good faith.
So Trump nominated Neil Gorsuch, Democrats were ready to fight back on that, and Republicans actually changed the Senate rules to allow Supreme Court confirmations with a simple majority of 51 votes, or 50 plus the tie-breaker from the vice president, this is the so-called “nuclear option.” At this point the Senate was divided with 54 Republicans, 44 Democrats, and two independents, so the Republicans had enough votes to confirm Gorsuch on their own without having to get any Democratic support at all.
Obviously Democrats felt that this was an even deeper betrayal, first Republicans refused to hold hearings for their nominee, and then they changed the Senate rules in the first three months of the Trump administration in order to avoid negotiation. So Gorsuch was confirmed in essentially a party line vote, 54-45.
Brett Kavanaugh was confirmed even more narrowly in a 50-48 vote in October 2018.
Of course Kavanaugh’s confirmation was controversial due to the allegations he was facing and the way he was questioned during the confirmation hearings, but in terms of the procedure itself there were no further allegations of foul play or bad-faith negotiations beyond the fact that Democrats thought he was the wrong choice and that they had basically been removed from the negotiating table following the rule change in 2017.
Newest Supreme Court Addition: Amy Coney Barrett
That brings me to the most recent addition to the Supreme Court, that would be Amy Coney Barrett, and for a lot of Democrats I think this was the straw that broke the camel’s back given what happened to Merrick Garland. A
s I mentioned earlier Justice Scalia passed away in February of 2016, nine months before the election, well Justice Ruth Bader Ginsburg passed away on September 18th, 2020, which was about six weeks before the election between Biden and Trump. So if you knew nothing about American politics other than what I’ve said, you might assume that the issues Republicans were talking about in 2016 and even later would prevent them from confirming a new Justice in this situation. For example Lindsey Graham said, “If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait till the next election.” Marco Rubio gave a similar statement, he said “I don’t think we should be moving on a nominee in the last year of this president’s term — I would say that if it was a Republican president.” Finally Ted Cruz said “It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don’t do this in an election year.”
I don’t want to go through every single Republican senator’s statement, fortunately Mother Jones put out a compilation of those statements during the Amy Coney Barrett hearings so there will be a link to that in the description in case any of you want to check it out.
Unsurprisingly that all changed for the Republicans once there actually was an opening for them, they immediately started working on getting Amy Coney Barrett in by the end of the Trump administration, or the first term if he had won the election, anyway she was confirmed on October 26th, 2020, which was eight days before the presidential election.
I know that’s a lot of background but that sets up the Democratic frustration over the current state of the Supreme Court, Obama was unable to get Garland confirmed in his last year, and Trump had the opportunity to confirm Barrett literally the week before he lost the election.
In fact Trump ended up nominating and confirming three Justices in his four years in office while Obama was only able to confirm two Justices despite serving two terms instead of one. So if you ask most Democrats in Congress they’re going to tell you that Merrick Garland should be on the Court instead of Gorsuch and that Biden should have had the opportunity to fill the opening left by Justice Ginsburg. So there’s this widespread feeling among Democrats that there’s something wrong with the Court, and that has led to a number of different proposals.
Ed Markey & Jerry Nadler’s Bill Proposal
On one hand you have Democrats who want to add Justices to the Court, the main proposal here is from Ed Markey in the Senate and Jerry Nadler in the House, their bill would increase the size of the Court from 9 to 13 Justices.
Now technically the Supreme Court has been made up of anywhere from 5 to 10 Justices at different times, but it has been consistent at 9 for more than 150 years at this point so any attempt to change that is going to be seen as political. And of course they would face Republican opposition, but it’s also unlikely that enough Democrats would get behind this plan, President Biden has stated that he’s “not a fan” of that idea, and Nancy Pelosi said that she wasn’t planning to bring this bill to the floor. So there are many progressives who support this plan, but unless something changes it’s not going to have much of a chance of passing the House or Senate.
The Alternative to Adding Justices
Now, the alternative to adding Justices is going to be pursuing more moderate reforms, and this is something that Biden has started working on through the creation of a commission to study potential changes that could give the Court more insulation from politics and rehabilitate the current conception that it’s more of a partisan institution.
Now this commission is bipartisan, there are legal scholars with different backgrounds, but at the same time Republicans are going to fight against anything that could take away the power they gained over the judiciary during the Trump administration, McConnell called the commission a “direct assault on our nation’s independent judiciary and yet another sign of the Far Left’s influence over the Biden administration.”
Biden’s Possible Reformsces
The commission isn’t going to have any real authority other than the opportunity to make recommendations to the Biden administration, and the White House’s statement discusses some of the reforms they might be looking at, it says “the Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. The topics it will examine include the genesis of the reform debate; the Court’s role in the constitutional system; the length of service and turnover of Justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”
The executive order gives them 180 days to come back with a report, it was signed on April 9th, that means they should have recommendations ready by October 6th if not earlier. So at this point we’re waiting for their report, again their recommendations aren’t going to be binding, but I think the commission will have a lot of power here because anything they get Biden to support is going to have a much greater chance of getting votes in the House and Senate, if he comes out and says there should be term limits then there’s going to be pressure on Democrats to fall in line behind that proposal.
Obviously they will still have to fight the filibuster, on the other hand Republicans removed the filibuster from judiciary nominations in early 2017 to clear a path for the Gorsuch nomination, so Democrats could try to do the same thing by either carving out some exceptions to pass these particular reforms or simply eliminating the filibuster entirely, which is going to be a hot button issue throughout the Biden administration as Democrats continue to weigh the pros and cons of removing the filibuster and allowing the Senate to pass legislation through a simple majority. So once the report is released then the question will be what do the Democrats want to do with the Court and how much are they willing to fight for those changes.
But what do you think? Do you think that the Supreme Court needs massive reform given all the drama we saw in the last decade over it? Or do you think that this drama is just part of politics and the balance of power will naturally shift each election cycle? Let me know your thoughts in the comments below.