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The most democratic thing Joe Biden could do is ‘pack the courts'

Court expansion isn’t radical — even Abraham Lincoln did it. What’s radical is a handful of lifetime-appointed conservative Supreme Court judges making decisions that will affect millions of American lives

Carl Gibson
New York
Thursday 15 October 2020 19:03 BST
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Biden waves to supporters during a drive-in voter mobilisation event at Miramar Regional Park, in Florida, on Tuesday
Biden waves to supporters during a drive-in voter mobilisation event at Miramar Regional Park, in Florida, on Tuesday (Getty)

Senate Majority Leader Mitch McConnell (R-Kentucky) has spent years packing the courts full of right-wing extremist judges — including many who were deemed unqualified by the American Bar Association. Amy Coney Barrett’s nomination is just the latest reason Democrats should counter that with expansion of not just the US Supreme Court, but the entire federal judiciary.

Judge Barrett’s nomination is likely to pass through the Judiciary Committee by the end of the week. If she advances, a procedural showdown could play out on the Senate floor next week, in which Democrats could choose to employ a number of parliamentary strategies in an attempt to stall Barrett’s replacement of the late Justice Ruth Bader Ginsburg. Still, Barrett’s confirmation to the Supreme Court now seems inevitable prior to Inauguration Day, barring extraordinary circumstances.

Democrats can do one of two things with a 6-3 conservative Supreme Court majority. They can either accept that a right-wing super-legislature will strike down nearly all Democratic lawmaking for the next several decades, or they can expand the courts (assuming things go Democrats’ way next month). 

The concept of adding more judges has been framed as “court-packing” by some media outlets, suggesting expansion is a radical departure from norms. This is causing competitive Democratic Senate hopefuls like Cal Cunningham, Jaime Harrison, and John Hickenlooper to shy away from the topic. But making the courts bigger is actually a necessary corrective measure needed to counteract the right-wing extremism that’s shaped the federal judiciary over the last decade.

First, it’s important to note that adding new Supreme Court justices for explicitly political purposes has been done in the past. Abraham Lincoln did it in 1863 as a means of denying the pro-slavery movement a foothold on the nation’s highest court.

“The number of justices is set by statute, not the Constitution,” Erwin Chemerinsky, dean of the University of California-Berkeley School of Law, told The Independent. “There is nothing to keep Congress and the president from increasing the size of the court.”

The Judiciary Act of 1789 and the Evarts Act of 1891 establish that presidents have the ability to appoint federal judges, and that Congress determines the number of judges who will sit on the benches of US district and appellate courts in the 12 federal circuits. This means that if, after November, Democrats maintain control of the House, win back the Senate majority, and elect Joe Biden to the presidency, they theoretically have the power to undo Mitch McConnell’s radical legacy of packing the courts with far-right judges.

President Barack Obama successfully appointed more than 300 federal judges over his eight-year tenure. However, after McConnell became Senate Majority Leader in 2015, Obama only confirmed 20 judges in the last two years of his presidency (a fact he proudly reminded viewers of in a recent interview). That’s an especially small number when considering that the Democratic-led Senate confirmed 68 of George W Bush’s judicial appointees during his last two years in office. And of course, McConnell famously denied a confirmation hearing to Obama’s third Supreme Court nominee for 293 days, later referring to that action as “the most consequential thing I’ve ever done.” But even before his tenure as minority leader, McConnell managed to severely inhibit Obama’s judicial appointment authority.

Under Obama, judicial nominees were routinely held up with “blue slips,” meaning if both home-state senators didn’t approve of a potential judge’s nomination to a court in their state, they wouldn’t even get the courtesy of a hearing. As a result, vacancies in the federal judiciary stretched on for years, which allowed Trump the opportunity to immediately fill more than 100 open judicial posts with right-wing extremists after he took office, all of whom have lifetime appointments. 

This strategy proved to have real consequences that are being felt today. Amy Coney Barrett had never even tried a case or argued an appeal prior to Trump elevating her to the 7th Circuit Court of Appeals in 2017. President Obama nominated Myra Selby — a Black woman — to fill the post in January of 2016, but Selby never got a hearing from the Republican-led Senate, and Barrett took her place instead. Also in 2017, Trump appointee Don Willett was confirmed to the 5th Circuit Court of Appeals — a judgeship that had been vacant since 2012. And shortly after Willett’s confirmation, Trump appointee James Ho was confirmed to the 5th Circuit to fill a spot that was vacated in 2013. 

Both Willett and Ho recently upheld Republican Texas Governor Greg Abbott’s controversial decision to limit ballot drop-off boxes to one per county, which disproportionately impacts Democratic-leaning voters in densely populated urban areas. An 82-year-old resident of Harris County, Texas — which is 71 percent larger than the entire state of Rhode Island — told the Texas Tribune he had to endure a 90-minute round trip just to drop off his ballot. We can expect more of these types of undemocratic decisions from the more than 200 far-right federal judges President Trump and the Republican Senate majority has already confirmed at a breakneck pace since 2017.

Given Amy Coney Barrett's extremist judicial philosophy, her confirmation could tilt the partisan balance of the Supreme Court hard to the right for decades if it goes unchecked. 

Last year, Barrett wrote an opinion declaring that an employer using the N-word in the workplace did not constitute a hostile work environment for a Black employee. Calendars from Notre Dame law school show Barrett gave seven talks that she didn’t disclose to the Judiciary Committee, including one to an anti-abortion group. During her third day of confirmation hearings, Barrett couldn’t even name the five freedoms guaranteed by the First Amendment while being questioned by Senator Ben Sasse (R-Nebraska). FiveThirtyEight argues she has the most conservative voting record on the 7th Circuit, even when including other Trump-appointed judges. 

Court expansion isn’t radical — what’s radical is a handful of lifetime-appointed conservative Supreme Court judges making decisions that will affect millions of American lives. Deepening the federal bench is especially imperative when concerning issues like the right to vote, the right to breathable air and clean drinking water, the right to safe reproductive healthcare, the right to basic respect in the workplace, and other issues that most industrialized countries would consider basic human rights. 

When the ship has been steered so hard to the right for so many years, an equally leftward shift is required to course-correct. Biden and Senate Democrats should embrace court expansion and make it their top priority when they’re sworn in next January.

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