Imagine, if you will, a political party that, having legitimately won a free election, finds that it might not have the freedom to enact its agenda as it wishes thanks to a troublesome independent judiciary.
Rather than restraining its agenda, or endeavoring to pass only legislation that will survive any legal challenge, the party decides instead to remake the judiciary in its own image. It passes a series of measures it touts as “reforms,” but which critics contend are simply a power grab. Although these measures are challenged legally, most of them eventually do end up going into effect, giving the majority party much greater freedom to act at the expense of the independent judiciary.
This wasn’t any U.S. political party that behaved in this fashion, but the ruling, right-wing populist Law and Justice Party in Poland. They passed a law requiring justices to retire from that nation’s Supreme Court, allowing themselves to appoint the replacements. This sparked a series of massive protests, condemnation from the international community and an investigation by the European Union. That’s entirely appropriate, as the moves by Law and Justice to neutralize the judiciary under the guise of “reform” are an attack on Poland’s democratic institutions, even if they were legal domestically.
Astonishingly, some liberal activists are proposing similar measures to remake the judiciary in this country. Their top proposal is an idea that’s been considered several times in our history: changing the size of the U.S. Supreme Court. The concept, known as court-packing, was last attempted by Franklin Delano Roosevelt to get around a conservative Supreme Court that frequently overturned his New Deal legislation. Like liberal activists today, he touted it as reform, but in reality it would have been a simple power grab that hampered America’s independent judiciary, which is why the Senate wisely rejected it.
If you’re surprised to learn that the current number of Supreme Court justices isn’t specifically set in the Constitution, you’re not alone, but it can be changed by simple legislation. Until recently, the idea would have been dismissed as completely impractical, but with the death of Justice Ruth Bader Ginsburg and President Trump’s nomination of Amy Coney Barrett to fill the seat, the scheme seems to be gaining steam among Democrats. It is worth noting that, as the Barrett confirmation hearings got underway in the Judiciary Committee, a number of Democratic senators – including vice-presidential nominee Kamala Harris – referred to the entire process as “illegitimate.”
To be completely clear, that claim is utter nonsense, and any sitting U.S. senator who makes it is being reckless and irresponsible. While the rush to confirm Barrett is certainly politically driven on the part of Senate Republicans, they’re following the rules. Just as Democrats were wrong four years ago when they claimed Republicans were constitutionally required to hold a hearing and a vote on the Garland nomination, they’re wrong now to claim that it’s illegitimate to move forward with hearings and a vote. As long as they’re willing to pay the political price, Senate Republicans may ignore a nomination or fill it as quickly as possible. That’s why it’s gratifying to see that a few Senate Republicans, like Susan Collins, are willing to insist that the same standard be applied to this vacancy. While the politics of a vacancy may be different closer to an election, and the public perception of it may be as well, it’s a completely legitimate process – even if it is politically unwise.
Democrats are likely grandstanding about the process being illegitimate to lay the groundwork for a future plan to expand the Supreme Court. That’s also probably why they’ve been misusing the term “court packing,” applying it both to the Barrett hearings and Republicans’ effectiveness in filling lower court vacancies. It’s a blatant attempt to muddy the waters around the term and confuse voters, so it doesn’t appear so radical if they choose to move forward with it.
Although expanding the Supreme Court would be legal, it would be unwise and ought to be rejected, just like a rushed confirmation process right before an election. That’s why it’s vital that all candidates for federal office take a perfectly clear position on it. If they’re not willing to completely rule out Supreme Court expansion, they can’t be trusted to preserve the checks and balances that make our system work. The independence of our federal judiciary is one of the cornerstones of American democracy, and it shouldn’t be tossed out the window because one party can’t get their way.
Jim Fossel, a conservative activist from Gardiner, worked for Sen. Susan Collins.
He can be contacted at: jwfossel@gmail.com
Twitter: @jimfossel
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