By Kathleen Parker
Court-packing is suddenly all the rage these days, what with nothing else zooming around in the zeitgeist.
But, first, a glossary of terms. Court-packing does not mean that Republicans are getting to pick too many Supreme Court justices. What court-packing means, at least as Democrats are discussing it in legal circles, is expanding the number of justices by some arbitrary number in order to depoliticize the court and make its composition more balanced. Theoretically.
What it really means is that Democrats want to pack the court in the expectation that a liberal-dominated Supreme Court will operate as all liberal-dominated courts have — as a super-legislator fulfilling liberal policy dreams that can’t get passed democratically. This was the same reason Franklin D. Roosevelt tried to pack the court in the 1930s: The Supreme Court was blocking some elements of the New Deal, and he wanted to add more justices in hope of securing approval. It’s worth remembering that this failed plan was the worst stain on his presidency — until his internment of Japanese Americans in the wake of Japan’s attack on Pearl Harbor.
Democrats are still aggrieved that Merrick Garland, nominated by President Barack Obama in 2016, didn’t receive so much as a hearing by the Republican-controlled Senate. This, too, is understandable, if not as relevant as one might think.
My own view at the time was that Garland, who wasn’t a hardcore lefty and had some appeal to centrist Republicans, should have at least been shown the courtesy of a hearing. But there’s no constitutional requirement that any president’s nominee be considered — and hearings, courtesy or otherwise, are not required. Senate Majority Leader Mitch McConnell, R-Ky., was well within his powers to ensure that the Garland pick went nowhere.
Wait, wait, I know. Yes, of course, it’s hypocritical for Republicans to argue then that the next president should choose Justice Antonin Scalia’s replacement and to now argue the impending election doesn’t matter. It is an old-fashioned power grab, no different than Democrats would surely orchestrate were circumstances reversed. So it goes in the land of the free and the home of majority rule.
But here’s the distinction with an important difference: What matters more than good intentions, more than politics, more than any president, is public perception of the stability of the court and its positioning above politics. This is why the justices wear black robes; it isn’t supposed to matter who they are. They’re all alike in their remove from the fray. A rush by one party would further undermine what is already in danger of looking like just another branch of government riven by politics. Adding members to the high bench would create an even more politicized judiciary and further diminish public trust in our institutions.
Both parties bear responsibility for this trend. Its roots lie with the Democrats’ rejection in 1987 of Robert Bork to the high court in a viciously partisan melee. Ever since, not even grudging respect has softened the contempt and disdain each party directs toward the other’s nominee, though mostly we’re talking about Republican nominees. The conservative-leaning majority, assuming Amy Coney Barrett’s confirmation, has left Democrats plotting ways to disrupt the carefully minded distance between the judiciary and the other two branches of government.
Joe Biden understands all of this and has consistently spoken out against packing the court, calling it in 1983 a “bonehead idea” and warning last year that doing so would destroy “any credibility the court has at all.” But recently he has begun showing signs of coyness as pressures come to bear from liberal commentators and at least 17 progressive groups pushing for it.
The question now is whether Biden will stick to his view if he wins or give into the gravitational pull of a younger generation of Democrats who want a liberal court, by hook, crook or wrecking ball. That tug will be greater if the Democrats win the White House and the Senate. During recent public appearances, Biden has refused to say where he stands, observing correctly that no matter what he says, his answer would become the focus of the campaign’s final days.
The best argument against adding more justices is: Where does it stop? If Democrats add three more justices, then Republicans will add three – or however many – and so on. Sen. Cory Booker, D-N.J., who said last year everything is on the table, once told a joke about a future grandchild asking him, “Granddad, why do we have 151 people on the Supreme Court?”
It’s a funny line, but the more serious consequences of messing with the land’s highest court aren’t amusing in the least.