WaPo’s Kathleen Parker seems afraid of debate when it comes to the question of whether SCOTUS should be expanded. She notes that President Biden has named a commission to examine the idea:
Biden is uncorking the commission to keep his left flank happy; and few people who follow these things believe it will finish its work by cooking up more justices on the bench. But it is likely that he is laying the predicate for such a move years from now.
You might even call this the “Never You Mind That Now”strategy, in which the Democrats are raising the prospect of a bigger court today only to seed it in our brains for their later use. This is a little like an arsonist who sets a fire so that he can put it out and become a hero. In the liberal version of this opera, a monster is created — the legislation to increase the court — so that the party can then kill it this round. When House Speaker Nancy Pelosi (D-Calif.) said she’d never allow the bill on the floor, the audience heaved a sigh of relief.
But the commission, if nothing else, serves the purpose of making something once unimaginable at least a topic of conversation. Basically, you get people talking about something, back it up with evidence (or commissions) and, gradually, the idea becomes less unpopular. People even forget why it was once objectionable.
But this is an illiberal (small-l) stance. Discussion and debate, formal (The Federalist Papers v. The Anti-Federalist Papers) or informal (yelling over the din at the bar), lies at the very heart of the liberal project in which our best hopes lie. In that concept resides the recognition that more than one mind, relying on honest, disinterested arguments, help find the best solutions to the problems, be they moral dilemmas or tangible thorny questions, which bedevil us in the world going forward.
To suggest we shouldn’t bring up the question going forward is to fear that best answer.
All that said, I think it’s worth remembering Justice Breyer’s remark on the question, which Parker also provides.
“If the public sees judges as politicians in robes, its confidence in the courts — and in the rule of law itself — can only diminish.”
And while sometimes it seems SCOTUS honors this sentiment more in the breech than its preservation, it remains a necessary aspiration for the Court, as it is for all courts, local, state, or federal, in order to retain their legitimacy. The manipulation of the Court in order for Democrat-nominated Justices to become the dominant faction, no matter how legal and, contra-Parker, imaginable it is, will strike most of the electorate as an unwillingness to play by the rules. Sure, it’s legal and it has been done before – but in American politics, perception is all.
And the Democrats must realize that such a maneuver would lose them a position of moral superiority. Some of the electorate remembers, and the rest can be reminded, that former Judge and current Attorney General Merrick Garland was never given the hearing he deserved as a result of his nomination by President Obama to replace the late Justice Scalia, because It was too close to the next Presidential election, never mind that event was more than ten months away. A variety of petty political lies were trotted out by a Republican Party that didn’t dare consider a candidate suggested by Republican Senators, and the result was a repudiation of the responsibility of the Senate by then-GOP majority leader McConnell.
But when Justice Bader-Ginsburg passed away, just a few months ago, with something like a month left before the next Presidential election, the Senate GOP arranged and confirmed Trump’s nomination of now-Justice Barrett, and even celebrated it, completing the utterly hypocritical circle and marking them as completely unsuitable for American governance roles.
Hypocrisy is an important concept because those who are hypocritical can only be trusted to break the rules whenever their self-interest will benefit from doing so. If they are faced with a decision that is existential to the nation, and offered an opportunity by a foreign adversary to select an option beneficial to the adversary in exchange for a bribe, they’ll take it without regard for the welfare of their fellow citizens.
That’s Senator McConnell (R-KY), GOP leader in the Senate, for you. If you’ve ever wondered why McConnell is loathed, it’s for his disregard for the safety and honor of the nation.
If the Democrats succumb to a round of Whataboutism, then they’ll be no better than their rivals, and the nation will suffer for it. SCOTUS members are subject to the infirmities of age. Pundits like to talk about how generations will be subject to conservative legal opinion. Given the agedness of just about everyone on that Court, I have to think those pundits like their drama a bit too much.
So, in the end, I’m with Parker that expanding SCOTUS is a bad idea – but discussing it is not, in itself, a bad idea.
