By Rich Lowry
Friday, September 25, 2020
For many progressive opinion-makers, the only way to save
the Supreme Court is to destroy it.
They believe the best response to the Republican-held
Senate confirming a Trump nominee to fill Ruth Bader Ginsburg’s seat on the
Supreme Court is to pack the Court if Democrats win in November. Holding out
the court-packing threat, they argue, also might give Republicans second
thoughts about filling the vacancy.
As a medium-term strategy, court-packing is a woefully
misconceived fantasy, and as a tactic in the fight over filling RBG’s seat, it
is already an abject failure. It is a lesson in what happens when you let your
outrage do your thinking for you.
For the Democrats, court-packing would be a
murder-suicide. It would end the Supreme Court as we know it, and almost
certainly bring a swift and decisive end to Democratic congressional
majorities. There’s a reason Republicans aren’t taking the threat seriously in
their calculations.
No matter how infuriated a party is, the rules of
political gravity still apply. A president is at the high point of his power at
the outset, steadily losing juice over time.
Would Biden spend precious capital on court-packing early
in his presidency? If so, voting, green-energy and health-care legislation
would take a back seat.
If, instead, all that legislation went first,
court-packing would be pushed toward the back of the line, when Biden would
have diminished clout for the political fight of a lifetime.
The question of timing would enter in another way. If
Democrats managed to add Court seats in the second year of a Biden presidency,
how much time and political capital would they have left to fill them before
the midterms? If Republicans took back the Senate, they certainly wouldn’t fill
them.
And, of course, when Republicans hold the presidency and
Congress again, they’d add their own seats or subtract the Democratic ones,
making the entire exercise a nullity.
It’s also true that, as a general rule, big changes
happen in our system when a party makes a sustained public case for them prior
to an election. Very few elected Democrats are willing to come out in favor of
packing the Court, and Biden the other day pointedly refused to endorse it.
Even though the advocates of what they euphemistically
call “court reform” rightly point out that there’s nothing written in stone
about the number of justices, it’s going to take a lot of work to convince
people that jettisoning the 1869 Judiciary Act is the equivalent of renaming a
post office.
Making court-packing the major initiative of his
presidency would be an awkward fit for Biden. It would validate the critique of
him as weak and prone to getting pushed around by the Left. It would blow up
his hope to bring some normality back to Washington. It would inexorably make
the destruction of the legitimacy of the Supreme Court part of his legacy, when
he imagines himself an institutionalist.
As far as counterintuitive presidential moves go, this
wouldn’t be Nixon goes to China; it’d be Nixon becomes a member of the Red
Guards.
The argument that Republicans have already “packed the
court” is a false equivalence. Yes, Republicans have used hardball tactics to
keep open, or now to try to fill, vacancies. But these seats opened up in the
natural course of events. They weren’t conjured out of nowhere in a fit of
pique or vengeance.
It easy to pound the table and demand an incredibly
momentous change to our system when you don’t have power and don’t have to cope
with the consequences. It’s another to act in the face of vigorous opposition
and with nervous officeholders in marginal districts or states looking for a
way out.
No matter how much progressives want elected Democrats to
write the ransom note, they aren’t going to take the Supreme Court captive next
year, let alone kill the hostage.
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