Beto O’Rourke has been in the presidential race for only a scant few days now, but he’s already behind one of the most controversial liberal policy initiatives kicking around out there: The idea of packing the Supreme Court to override the fact that President Trump has had two justices confirmed.
“What if there were five justices selected by Democrats, five justices selected by Republicans, and those ten then picked five more justices independent of those who chose the first ten?” the former Texas congressman told a crowd in Iowa on Thursday.
“I think that’s an idea we should explore.”
Packing the Supreme Court isn’t a particularly new idea. Ever since Trump got elected, the left has been fuming over the fact that the Senate refused to act on Obama Supreme Court nominee Merrick Garland. The president ended up getting Neil Gorsuch instead, and when Anthony Kennedy retired he got Brett Kavanaugh.
This doesn’t particularly change the makeup of the Supreme Court all that much. Anthony Kennedy was a swing vote, and one presumes that Brett Kavanaugh won’t be, though he hasn’t been on the bench long enough for anyone to tell. In other words, more or less status quo ante. And this makes liberals furious.
So furious, in fact, that they’ve suddenly discovered the concept of judicial activism: “For the past 25 years, the judiciary has moved increasingly further right and the Supreme Court has tossed out duly enacted legislation, opened the floodgates to public corruption, and undermined substantive democracy,” Vox’s Matthew Yglasias wrote shortly after Justice Kavanaugh’s confirmation last autumn. “The public has largely missed this bigger picture because the American progressive movement has focused attention on the role of Court in protecting abortion rights.”
Writing for The New Republic in a piece published Saturday, Tim Burns said that the seven times that the number of justices has been changed “have gone hand in hand with the most vibrant periods of our democracy.”
“We were never intended to be a government by judicial fiat, but the threat has always existed. As Alexis de Tocqueville famously noted, every major political dispute in the United States eventually finds its way into the courts, and courts have the final say in these disputes,” he wrote.
“Courts can, and have at times, stagnated our government’s ability to respond to critical political and economic issues of the day. That is exactly what is happening today. A Supreme Court majority, sharing a constitutional vision that harkens back to the days when political power was enjoyed by only a landed, male, white aristocracy, is preventing our democratic processes from solving problems that go to the very heart of our democracy. The court’s conservatives stand in the way of our efforts to keep dark money out of politics, to prevent the suppression of the voting rights of people of color, and to solve the polarization that has come with political gerrymandering.”
In other words, the court’s job is to ignore the Constitution when it comes to issues important to liberals. Burns is more direct, essentially calling the current Supreme Court white supremacist. Thus, to increase our political vibrancy, we need to pack it with more liberals.
Again, notice the sudden discovery of judicial activism. In this case, “judicial activism” is code for “deciding cases based on how the Constitution is written, not how the left wishes it to be interpreted.”
O’Rourke is all for “exploring” this, as well as issues such as term limits on Supreme Court justices.
“We’re a country of 320 million people. There’s got to be the talent and the wisdom and the perspective,” O’Rourke said. “And that court should be able to reflect the diversity that we are composed of in this country.”
Watch a Republican president and a Republican Congress try to tinker with the Supreme Court, however, and hear the howls go up like a forest full of wounded coyotes.
O’Rourke isn’t the only Democrat candidate for the 2020 presidential nomination to advocate for court-packing, either, though he’s the most high-profile candidate to seem to actually get full-force behind it.
South Bend, Indiana, Mayor Pete Buttigieg supports court-packing, according to the Washington Free Beacon. “It takes the politics out of it a little bit, because we can’t go on like this, where every time there’s a vacancy there’s these games being played and then an apocalyptic ideological battle over who the appointee is going to be,” he said at an appearance at Saint Anselm College in New Hampshire. “If we want to save that institution, I think we better be ready to tune it up as well.”
Then again, if you’ve heard of Pete Buttigieg before this and you don’t follow politics for a living or a serious hobby, I’m guessing you’re a member of the Buttigieg family, though he has gained a bit more traction in recent weeks. You probably have heard of Sen. Kirsten Gillibrand of New York, who took a tentative step toward court-packing or term limits by saying they were “interesting ideas that I would have to think more about,” which isn’t quite the endorsement O’Rourke gave those ideas.
But then, the most telling endorsement of court-packing came from former Attorney General Eric Holder.
“Given the Merrick Garland situation, the question of legitimacy is one that I think we should talk about,” Holder has said in recent talks, according to The Washington Post. “We should be talking even about expanding the number of people who serve on the Supreme Court, if there is a Democratic president and a Congress that would do that.”
This isn’t about a stagnant court or a vibrant democracy. This is about the fact that the Democrats didn’t get the Senate to do what they want and now they’re piqued. This has less to do with the seven previous times Congress has changed the number of people on the nation’s highest court and more to do with the most recent attempt, Franklin Delano Roosevelt’s 1937 push to expand the Supreme Court because some of his New Deal policies didn’t pass constitutional muster.
That gambit rightly went down in history as one of the more cynical attempts to alter the judiciary for political means. Anyone who embraces this new wave of court-packing glee — especially presidential candidates like Beto O’Rourke — should be viewed the same exact way.
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