At least five of the Democratic presidential candidates, including Elizabeth Warren and Amy Klobuchar, worry a Democratic president would face a hostile Supreme Court and want to add more justices to the Court.
Senate Majority Leader Mitch McConnell has used his GOP caucus to block judicial nominations by President Obama and open the floodgates for President Trump’s conservative choices for lifetime appointments.
The GOP majority sets the Senate rules and has used them to deny Obama’s nominations. Then, the GOP approved almost all Trump nominees without any serious review.
Trump likes to flaunt his claimed presidential superiority over Obama, saying his predecessor lacked the skill to get his nominees confirmed, while Trump mastered the process. He ignores McConnell’s role.
Republicans want to continue conservative control even if the GOP loses control of Congress and the presidency. This is not new. The Federalists, the party of George Washington, dominated the Supreme Court for decades after that party permanently lost power.
Democrats in power could face an avalanche of lawsuits from opponents against the laws they adopted. The conservatives would hope for a like-minded Supreme Court majority to overturn the new laws.
President Franklin D. Roosevelt faced that situation in the 1930s. Only his threat to add more justices to the Court and his stunning 1936 victory caused a Court reversal, remembered by the saying “a switch in time saves nine.”
Democratic candidates now advocate enlarging the Court, if and when the Democrats control the federal government. In that way, the Democrats could frustrate the McConnell strategy by overwhelming the conservative justices by an influx of more liberal justices.
The size of the Supreme Court is set by Congress, so the size of the Court might readily be changed. This has been done. For example, during the 1860s, the size of Court changed from nine to ten and then down to seven before returning to nine. The changes were political.
Roosevelt’s so-called “Court packing” plan was not popular, even with Democrats. It seemed to drag a supposedly neutral court into the politics of the day. Would it be different today?
The Court back then was obviously opposed to Roosevelt’s New Deal. But many saw the split as a philosophical difference, not partisan warfare.
But since then, the Court literally selected a Republican president in 2000. One justice later admitted her partisanship in joining in the 5-4 majority. Justices are appointed from a list provided by a conservative organization that has never supported a Democrat. They are expected to reverse Democratic-passed laws.
Some Democrats, including Joe Biden and Bernie Sanders, oppose adding justices. They may worry about launching an ever-escalating number of appointments used to achieve partisan advantage.
If there’s a sense something short of “packing” is needed, there is a viable alternative. Congress and the president could agree to the appointment of “temporary” justices. Even though federal judges are appointed for life, it’s possible.
That has been done more than once, the last in 2013, when a law created 17 temporary federal judges. These are lifetime appointments, added to the existing, “permanent” judges on district or appeals courts. When a vacancy occurs among the permanent judges, no new appointment is made and the “temporary” judge fills the slot.
Using this approach, the Democrats could increase the size of the Supreme Court temporarily. They could ensure the conservative and partisan packing done by McConnell would be replaced by a process allowing for more balance or even a tilt to the liberal side.
Suppose Obama had proposed to fill the last vacancy with Republican favorite Brett Kavanaugh in the permanent slot and Merrick Garland, his choice who was completely blocked by McConnell, to a temporary position. McConnell might have turned the proposal down, but it would have highlighted the issue.
Such a move by Obama would also have set the stage for the president who succeeds Trump. And the possibility alone could influence Republican senators even before then.
The proposal could be tied to the judicial workload, one of the driving forces behind the “temporary” judges. The nine justices now only hand down about 70 decisions a year, far fewer than in the past. More justices could allow it to avoid leaving major national decisions to lower courts and to produce faster results.
The Democratic candidates should focus more on the Supreme Court. Among the decisions made by any president, appointments to the Court may have the longest-lasting effect.
“Temporary” justices, nothing new in U.S. history, could be the way to divert the Court from its current course toward becoming a partisan legislative body.