Once it became clear, in the aftermath of Justice Ruth Bader Ginsburg’s death Friday at the age of 87, that the Senate would consider a replacement for the liberal justice and the White House would almost certainly tender one, the Democrats’ messaging quickly took shape: Do it and you’ll be sorry.
Some individuals were more cagey than others what “sorry” meant. Talking with congressional Democrats, for instance, Senate Minority Leader Chuck Schumer spoke in couched terms.
“Let me be clear: if Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year,” the New York Democrat said on a conference call with party colleagues, according to Axios. “Nothing is off the table.”
Some made it a bit more clear what “sorry” would entail.
“Mitch McConnell set the precedent,” Democratic Sen. Ed Markey of Massachusetts wrote in a Twitter post. “No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.
— Ed Markey (@EdMarkey) September 19, 2020
And then there was the liberal media, which was far more explicit about it in various opinion pieces. Vox’s Ian Millhiser: “The one thing Democrats can do to stop Trump from replacing Justice Ginsburg: Court-packing may be the only solution.”
Jill Filipovic in The Washington Post wrote, “If McConnell pushes through a nominee, President Biden should pack the court.”
The best of these, from someone who enjoys a bad laugh from media bias as much as any conservative who has to digest it for a living, was from what was ostensibly a straight news piece from The New York Times‘ Maggie Astor, titled “Ruth Bader Ginsburg’s Death Revives Talk of Court-Packing.”
The most unintentionally humorous bit: “The term is commonly associated with President Franklin D. Roosevelt, who pushed legislation in 1937 that could have expanded the Supreme Court from nine to as many as 15 justices. The history is more complicated than the usual narrative suggests: Mr. Roosevelt, aiming to push older justices to step down, wanted to add a justice to the court for each sitting justice who refused to retire after 70.”
So it was court-packing, but it was complicated court-packing — far more complicated than regressive minds have made it out to be in the intervening 83 years. One assumes that a Maggie Astor IV, writing for whatever is left of The Times in 2103, will describe any attempt by Senate Democrats to pack the court in the near future as “more complicated than the usual narrative suggests.”
This talk is mixed with the fact it’s keeping in line with a request Justice Ginsburg left behind before she died, that her “most fervent wish is that I will not be replaced until a new president is installed.”
Justice Ruth Bader Ginsburg fought to the end, through her cancer, with unwavering faith in our democracy and its ideals. That’s how we remember her. But she also left instructions for how she wanted her legacy to be honored. My statement: https://t.co/Wa6YcT5gDi
— Barack Obama (@BarackObama) September 19, 2020
All of this ignores the fact Ginsburg was against court-packing.
In July of last year, as the Democratic presidential primary process was kicking into high gear, Ginsburg was interviewed by NPR. At the time, several of the candidates had either expressed support for court-packing or seemed open to the idea.
Sen. Kamala Harris of California was in the latter camp, just in case you were somewhat heartened that Joe Biden himself had come out against the idea. (He’s been silent on the matter since Ginsburg’s death, for whatever that’s worth.)
Yet, Ginsburg wasn’t a fan.
“Ginsburg, who got herself in trouble criticizing candidate Donald Trump in 2016, this time was critical not of any particular Democratic contender, but of their proposals to offset President Trump’s two conservative appointments to the court,” NPR’s writeup of the interview read.
“Nine seems to be a good number. It’s been that way for a long time,” she told the public broadcaster. “I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”
First: Sorry, Maggie Astor, but if Ruth Bader Ginsburg wasn’t given to the impression that FDR’s attempts to blackball conservative judges off of the Supreme Court wasn’t “more complicated than the usual narrative suggests,” I’d maybe give that one up.
Second, it’s worth noting that at the time of this interview, Justice Ginsburg was fully aware of where the next vacancy on the Supreme Court was likely to come from. She wasn’t just the oldest Supreme Court justice, she was a woman who had survived multiple recurrences of cancer.
She was also well-aware of the fact that Trump had gotten one of his two Supreme Court picks because Senate Republicans hadn’t taken up Merrick Garland’s nomination in an election year — something that Democrats already thought was worth considering court-packing over.
There’s simply no possibility a mind of her caliber didn’t know there was a possibility, and a pretty high one, that she could not only die in an election year but that President Trump could pick her successor.
In spite of all of knowing all of this, Ginsburg didn’t hedge. She didn’t say that nine seemed like a good number unless she or Stephen Breyer, the court’s other octogenarian liberal, were to pass away in an election year.
Her exact words: “Nine seems to be a good number … I think it was a bad idea when President Franklin Roosevelt tried to pack the court.” Full stop.
Yes, she said that she wished for the next president to pick her replacement. I have no doubt she did. And yet, she didn’t say that if that weren’t the case, she was retracting her previous statement about court-packing.
She was under no compunction, if this were her last statement, to refrain from politicking. She knew that, the moment she passed from this vale of tears, her words would no longer be those of a sitting Supreme Court justice, and thus she had no responsibility to hold back what she thought regarding the terms of her replacement at a politically fraught moment in our nation’s history.
Given all that, no one is honoring the legacy of Ruth Bader Ginsburg by threatening to pack the court. What Democrats are honoring are the members of their own party’s base, who are currently involved in rending their garments and gnashing their teeth over the prospect of another Trump appointee.
This, in short, is about obtaining and maintaining power. They may be opening Pandora’s Box by even suggesting court-packing, but it makes for good political fodder — and it’ll be even better fodder when draped in the cause of commemorating the late justice’s legacy, no matter what she may have thought of the idea.
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