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When I was assigned to the Pentagon, there was a (maybe) apocryphal tale of an officer–a major–who was assigned to study a particular subject, he was reassigned before the study was done, a decade later he returned as a lieutenant colonel and was assigned his old study to complete. Politics is very similar. If you watch it for long enough old ideas are recycled as though they were new. So it is with the latest Democrat masturbatory dream: court-packing.*
This is the background: When FDR was elected in 1932, he, in best “never let a crisis go to waste” style, used the dire straits created by the Great Depression to set the country on the road to socialism. The only thing that stood in his way was the US Constitution and a Supreme Court that defended it. Roosevelt’s New Deal program was battered and mostly found to be unconstitutional. In 1936, Roosevelt won resounding majorities in both Houses and on March 9, 1937, he announced his plan to rid himself of the encumbrance of the US Constitution:
What is my proposal? It is simply this: whenever a Judge or Justice of any Federal Court has reached the age of seventy and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the President then in office, with the approval, as required by the Constitution, of the Senate of the United States.
That plan has two chief purposes. By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope, first, to make the administration of all Federal justice speedier and, therefore, less costly; secondly, to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work. This plan will save our national Constitution from hardening of the judicial arteries.
The number of Judges to be appointed would depend wholly on the decision of present Judges now over seventy, or those · who would subsequently reach the age of seventy.
If, for instance, any one of the six Justices of the Supreme Court now over the age of seventy should retire as provided under the plan, no additional place would be created. Consequently, although there never can be more than fifteen, there may be ‘only fourteen, or thirteen, or twelve. And there may be only nine.
Effectively, what FDR did was fire a shot across the bow of the Supreme Court. If they behaved themselves, no problem. If they didn’t? Well, it’d be a shame if something happened to that nice little court you got there. The Supreme Court buckled. Suddenly, what had been unconstitutional was mandatory and here we are today with an insatiable and uncontrollable federal government.
Now with Brett Kavanaugh removing the “swing vote” (why does anyone think having a single wildcard justice like Anthony Kennedy, who is liable to rule most anyway based on what he had for dinner last night, is a good idea?), the Democrats are in a tizzy over being turfed out of all three branches of government. They are especially exercised since they are the people who have effectively made the judicial branch our masters, rather than mere referees, and they see that branch lost to them for a couple of generations. As the actuarial tables indicate that if Trump is re-elected he could easily replace four more justices, the loss of control of the Supreme Court has become an existential threat to their dreams.
Here, the Washington Post quotes noted legal scholar, Michael Avenatti, to make the case:
The below is more true today than ever before. The Court must be expanded to 11 seats and it can be done under the law. Any Dem that does not commit to expanding the Court has no business running for the nomination. There is far too much at stake. #Basta pic.twitter.com/NTQ2ssE5cb
— Michael Avenatti (@MichaelAvenatti) October 6, 2018
Court-packing has come up occasionally throughout the years as a workaround for one side or the other to wage something of a hostile takeover of the court. Rather than waiting for the right justices to retire or die when the right president is in office, the theory goes, a party can just expand the court enough to install the requisite justices and tip the scales to its side. Enacting term limits for justices would require a constitutional amendment and take years to pan out; packing the court is quicker and requires only a regular old act of Congress.
Which brings us to today. We’re arguably in an environment in which this rather drastic and little-used step could be construed as viable or even necessary. The only things standing in the way of such an effort are basic math and a fear of unintended consequences. And the barriers on both counts are crumbling.
A quick recap: A Republican blockade of President Barack Obama’s judicial nominees in the early 2010s led the Democratic-controlled Senate in 2013 to invoke the “nuclear option,” getting rid of the filibuster for non-Supreme Court nominees. By 2016, Obama nominated Merrick Garland to the Supreme Court, and Republicans wouldn’t even hold a hearing — reasoning that it should wait for the election of a new president. By 2017, a Democratic Party that was perhaps legitimately aggrieved by the Garland situation and Donald Trump’s popular-vote-losing win in the presidential election funneled that frustration into a doomed filibuster of Trump’s nomination of Neil M. Gorsuch. They did this despite pretty much everyone knowing that Republicans would just go nuclear for Supreme Court nominees like Democrats had for other nominees, and they did. Then came the events of the past few weeks, culminating in Kavanaugh’s rather ugly 50-vote ascension to the Supreme Court — in which even he admitted fault for his conduct.
It's time to pack the Supreme Court. https://t.co/YSxHZT3T74
— Jacobin (@jacobinmag) June 28, 2018
— The New Republic (@newrepublic) June 27, 2018
Under a Democratic president, Democrats in Congress should increase the number of Supreme Court seats to at least 11. https://t.co/TtxL44jCwN
— The Outline (@outline) June 28, 2018
Vox, naturally, agrees with the Washington Post that court-packing is justified because Republicans are evil:
One of the most extensive arguments for court-packing comes from David Faris, a political scientist at Roosevelt University, whose book It’s Time To Fight Dirty argues for court-packing as part of a larger set of strategies to amplify Democrats’ political power, including statehood for DC and Puerto Rico, breaking California into multiple states, and expanding the House of Representatives.
The Republican Senate’s refusal to even consider Merrick Garland for Antonin Scalia’s seat, Faris writes, violated “a norm that presidents should get to nominate whoever they like, within reason.”
He continues: “Because of this unspoken agreement between the two parties, both sides regarded Supreme Court openings as what they are — lotteries to be won by lucky presidents, or lost by those unfortunate enough not to preside over an opening. The GOP’s treatment of Merrick Garland means that this informal agreement is trashed.”
That, to Faris, makes extraordinary measures like court-packing suddenly viable. And the threat of a conservative court undoing just about any legislative accomplishments of the next unified Democratic government makes it necessary: “A Court that strikes down a Medicare For All insurance system, or legislation establishing equal funding for public education, or that chips away at abortion rights, gay rights, and other issues that are now supported clearly by a majority of the public will create a profound crisis in American society of the likes that we haven’t seen since the Great Depression.”
Will this work? Probably not. The number of times a single party has controlled all of the levers of power in sufficient strength to change the makeup of the Supreme Court since FDR has been rare. There is also no reason to believe that a Democrat-controlled Senate would vote as a bloc on something this radical. This should be more correctly viewed as a threat to try to get the conservative majority on the Supreme Court to give the left victories so they can make the danger go away. Essentially, I think the left is trying to do what FDR did in 1937, only without controlling the presidency, the House, or the Senate.
All of this goes back to a larger point: We are not opposed by a party that has different ideas. We are opposed by a party that is fundamentally hostile to the Bill of Rights and to a republican system of government. Had Obama managed to install Merrick Garland on the Supreme Court and lock in a liberal majority can you name a serious voice on the right who would be agitating to expand the Supreme Court? Of course not. But the Democrats are hellbent on the destruction of the US Constitution and the nation that it guided from rural backwater to world power while maintaining a level of individual liberty unknown to most of the world.
These people are not people we need to reconcile with. These are people who need to be totally crushed. Perhaps, in time, some degree of sanity will return to the Democrat party but I won’t live to see it. The progressive beast requires unconstrained power to thrive. And centralized power is the natural enemy of freedom. Only one of us can prevail.
*Not to be confused with that other favorite progressive pastime, fudgepacking.
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