The unfortunate death of Justice Ginsburg raises tensions in what has already been one of the most politically tense eras in the last half-century. Her death in this context, unfortunately, leads minds (mine included) to contemplate the political implications, both short and long term, more than reflecting on her life, career, and contributions.
In terms of the basic politics, James Joyner is correct: unified government (unlike after Scalia’s death) means that there are no constitutional barriers to stop the Republican Preisdent from sending a nomination to the Republican-controlled Senate, who will then almost certainly confirm that nominee.
The only clear potential barriers would be two Republicans on the Judiciary Committee voting with the Democrats to block nominees from leaving committee or, more directly, four Republican Senators saying that they would not vote for any confirmation (Murkowski of Alaska has already said so, but I am not sure where the other three come from).
And let’s face facts: yes, this makes McConnell look like one of the biggest hypocrites of all time, and the rest of GOP with him. But they will all gladly suffer the slings and arrows of being called hypocrite by their enemies in exchange for a Supreme Court seat.
Temporary excoriation (and even being more permanently scarred in the history books) is a small price to pay for a lifetime appointment to the Court and, therefore, multiple decades of influencing constitutional law in the United States.
So that gets me to this from James’ post:
The related question, then, is of packing the Court. I’m four-square against it but could be persuaded that adding a single Justice to undo a lame duck appointment was reasonable.
With the exception of a three-year period from 1863-1866, the Supreme Court has been at nine Justices since 1837—nearly two centuries. Even the incredibly popular Franklin Roosevelt generated enormous backlash when he proposed packing the court with younger Justices after growing frustrated at seeing his New Deal policies ruled unconstitutional. That was nearly a century ago. Nine is sacrosanct.
There was a time where I would have agreed (if anything on practical grounds). Even within the last year I probably still felt that way, but as I noted in a post just last month (Reforms: the Possible, the Improbable, and the Unpossible) there are a limited number of real options when it comes to addressing some very significant flaws in our system, and increasing the size of the Court is one of them.
Let’s considers some basic numbers, ones that are not new to my writings.
Since 2000:
- Five presidential terms
- Three terms for Republicans (Bush x2, Trump)
- Two terms for Democrats (Obama x2)
- One popular vote win by Republicans (2004)
- Four popular vote wins by Democrats (2000, 2008, 2012, 2016)
- Four Supreme Court Justices appointed by presidents who initially came to office* after having lost the popular vote (Roberts, Alito, Gorsuch, Kavanaugh)
And, of course, that last category appears highly likely to about to become five. Morever, that would mean three members of the Court (fully a third) would have been appointed for life by a president who lost the popular vote by almost three million and whose approval rating has been under 50% for his entire presidency, save a few days at the very beginning of his term.
In addition to the flawed process we elect the president, there is also the fact that Senate, which holds the keys to confirmation, and the nature of life appointments to the court are part of the problem.
I want the solution to be: go vote! Let the myriad voices of America come together via fair competition so that we, the collective people, directly influence government. Majority rule with minority rights is supposed to be the basic notion of representative democracy.
Instead, we have here, again, minority rule. The minority picked Trump. The minority controls the Senate. And the confluence of structures that empower the minority over the majority already have been able to seat four Justices, and is about to seat a fifth (and to overall bring their majority on the Court to six).
And yes, lest anyone is tempted to tell me, these outcomes are direct consequences of the constitutional rules under which we operate. I understand the rules, their origins, and their functioning all too well. But that doesn’t make these outcomes good, just, appropriate, or even defensible if one values representative democracy.
I would note, that the constitutional mechanism designed by the Framers did not envision westward expansion as it ultimately occurred. Just look at the geographic size of the 37 states added over time, and compare them to the first 13. And think about how large, largely peopleless (in a relative sense) states like Wyoming, Idaho, and the Dakotas distorts the EC and the Senate (institutions that already distort majority influence). And, on the other end of the spectrum, how vast, highly populated, states like California and Texas also distort the original design.
If anyone is tempted to “republic, not a democracy” this situation, please at least acknowledge that what you are defending is minority rule and you are defending it because the minority to which you belong is the one that is benefitting.
And please, don’t pretend like the United States is a shining city on a hill or a model for the world.
This all gets me back to expanding the size of the Supreme Court (which I prefer to the term “court packing”). Anyone who has read my writings here knows my preference for having a popular vote for the presidency and various other, deeper, reforms to the way we elect Congress, and even substantial restructuring of the Senate. I am certainly cognizant of the difficulties (near impossibilities?) of these reforms, especially in the short term. And while I will continue to try to educate anyone who will listen concerning these options, the increased erosion of the basic representativeness of our system means that practical solutions are also needed.
A system that allows the party that cannot muster majority support to nonetheless frequently control one half of the legislature, win the executive with minority support at a rate that has outpaced the ability of the other party to win it with majority support, and to therefore be able to dominate the constitutional court for the next several decades is a highly problematic system.
It is an unrepresentative system.
It is an unjust system.
And it is a system that will lead to protests and even breakdown at some point. (I honestly think that at least part of what is driving some of the current protests are feelings of not being represented, even if the protestors don’t understand why–and we don’t correct this problem, it will get worse).
As such, I have come around to the notion that if the Democrats can control the White House and the Congress starting in 2021 that they should add states and they should increase the size of the Court. I do not reach that conclusion lightly, nor am I especially thrilled at having reached it.
I would note that there are both constitutionally allowed actions. They break norms (the last time we added states we did so with partisan balance in mind, and James is right that nine Justices has been the norm for most of the history of the republic).
I would prefer that the norm-breaking end. But since that does not appear to be likely, I am willing to support norm-breaking that is both constitutional and that would have at least some ability to address the representational imbalances in the system.
Adding Justices would counter-balance five Justices appointed by Presdidents who came to the White House without majorirty support.
Adding states would make the Senate, and the Electoral College, slighgtly more representative.
It is also why I support increasing the size of the House.
If we cannot get a new system, and I aware of the dangers of even trying, then we need to do our best to make the current structure as representative as we can.
*Bush did not get any appointees in his first term.
