Destroying The Court To Save It: Democrats Wrongly Use Ginsburg To Push Court Packing Scheme

Below is my column in USA Today on the growing calls for packing the Supreme Court with up to six new members as soon as the Democrats gain control of both houses of Congress and the White House.  I was critical of Democratic nominee Joe Biden this week when he refused to answer a question of whether he supports this call by his running mate Kamala Harris and other Democratic leaders. Biden told reporters “It’s a legitimate question, but let me tell you why I’m not going answer…it will shift the focus.” That was an extraordinary statement since if the question was legitimate, the refusal to answer it was not. Many of us would not support a presidential candidate who supported the packing of the Court. If Biden considers this a viable option, he is not a viable candidate for many of us. This is a central issue in the presidential campaign that has been pushed by Harris and top Democrats.  Yet, Biden is refusing to confirm his position. What is particularly concerning is that Biden precisely and correctly denounced court packing schemes like the one supported by this running mate.  Just a year ago, he insisted “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.”

Here is the column:

“Nothing is off the table next year.” Those seven words of Senate Minority Leader Chuck Schumer capture the “total war” declarations of the Democrats when asked about any nomination to replace Supreme Court Justice Ruth Bader Ginsburg before the election.

There is a type of liberation that comes from what military theorist Carl von Clausewitz called “absoluter Krieg”: “War is nothing more than the continuation of politics by other means. … For political aims are the end and war is the means.” The means raised with Schumer is a demand for the Democrats to pack the nation’s highest court with added members once they take control of the Senate.

House Judiciary Committee Chairman Jerry Nadler also declared that “the incoming Senate should immediately move to expand the Supreme Court.” Rep. Joe Kennedy III, D-Mass., tweeted: “If (the Senate) holds a vote in 2020, we pack the court in 2021. It’s that simple.”

Yes, it is as simple as it is senseless. It is a curious way to honor Justice Ginsburg by destroying the institution she loved. Packing the court is all about power, not principle.

Remember Franklin Roosevelt

As members and commentators have lined up to pack the court once Democrats take control of the White House and the Senate, I have been called about a plan that I first proposed over two decades ago to expand the court. This, however, is not my plan. It would expand the court for the wrong reason and in the wrong way. In that sense, it is more similar to the court-packing plan of President Franklin Roosevelt.

In comparison with some other countries, our court is pint size. Indeed, it is demonstrably and dysfunctionally too small. Moreover, unlike the considerable thought put into all of our other major institutions, the size of the Supreme Court was arrived at by virtual accident. The Constitution does not set the size of the court.

The first Supreme Court had just six justices, and when it convened in 1790 at the Royal Exchange Building in New York, only four justices bothered to show up.

Over history, the size of the court has fluctuated. Justices once “rode circuit” and sat as judges in lower courts, so when Congress added a circuit, it would add a justice. When a 10th Circuit was added in 1863, a 10th justice was added. In 1869, however, Congress set the court at nine members.

That’s it. No deliberative debate. No historical or political analysis. More thought went into the size of the Consumer Financial Protection Bureau than the size of the U.S. Supreme Court.

Notably, most of the other countries with substantially larger courts have them to avoid the persistent problem of our nation’s highest court in becoming practically a court of one with a swing justice. My proposal was to increase the court to 17 or 19 members (the larger option allows for the possible return to the tradition of two justices sitting on lower courts each year by rotation). My review of similar size courts (including appellate courts sitting “en banc”) shows less stagnation around a single jurist as the swing vote and greater intellectual diversity.

However, there was a critical catch. The increase to 17 or 19 justices would occur slowly so no president would be allowed to appoint more than two additional justices in a term. The commitment would be for a full court over roughly two decades. That is the difference between reforming and packing a court.

This call began a few years ago. Commentators like Pema Levy declared that the Republicans were succeeding in shaping the court, and that it has led “some Democrats to believe that it’s time to throw out the rule book and fight back.” That “rule book” was previously called the Constitution.

Democrats just want muscle

Democrats want to simply engineer a majority in a raw muscle play after taking over the Senate and the White House. It is as raw and transparent as the FDR court-packing scheme. Faced with a conservative majority ruling against his New Deal legislation, Roosevelt called for up to six additional justices, one for every justice older than 70. That was basically the profile of the “four horsemen” blocking his measures.

Like the latest calls, the FDR plan was based on politics rather than principle. When the politics changed, the plan died. FDR dropped his plan as soon as he got what he wanted with a favorable majority. That is why the switch of Justice Owen Roberts in favor of a New Deal case became known as a “switch in time that saved nine.”

The expansion of the court should not be simply because Democrats do not like the fact that President Donald Trump got three nominations. This was always the risk for a number of aging justices. In 2017, I wrote that Ginsburg (who was the oldest member of the court and long battled cancer) was taking a huge gamble with her legacy by not allowing President Barack Obama to appoint her successor.

Before Ginsburg died, nine nominations had occurred in election years since 1900, and Ginsburg herself said in 2016 that the Senate had to do its “job” and vote on such nominations because “there’s nothing in the Constitution that says the president stops being president in his last year.” Moreover, Ginsburg also opposed expanding the Court, but she is not being cited by liberals as the reason to doing precisely what she opposed as inimical to the functioning of the Court.

That does not mean that the Democrats are wrong in calling out the hypocrisy of Republicans who opposed any vote in 2016 (or conversely Republicans quoting Democrats who insisted that election year nominations are entirely appropriate in 2016). Senators can vote against the nominee on any ground, including the timing. However, nomination is still a constitutional prerogative being exercised for the 10th time in an election since 1900. It is no excuse to call for the packing of a court and destroying decades of tradition. It is the political equivalent of the Vietnam War goal of destroying a village to save it. This court will not be saved by packing it.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley

219 thoughts on “Destroying The Court To Save It: Democrats Wrongly Use Ginsburg To Push Court Packing Scheme”

  1. Question for Mr Turley,

    Not only for here but because if this is discussed in general we can nix the whole scheme outright before it even gets started.

    From my understanding, Congress ( the House and Senate combined ) does not have the power to EXPAND the court.
    It has the power to set it’s size.

    So when the proponents of packing the court say “Let the Republicans go ahead and pack it in return. Once they win the white House” they are wrong.

    Should Congress in 2021 pack the court, and Republicans win control of both the House back in 2023. Their only option is not to pack the court further. They are perfectly capable of reducing the Court back to Nine.
    IN doing so, THEY get to decide who comes off. Not the President. He only has say in appointments. Not in removal. Not even in impeachment.

    Removing Justices in reverse order of seniority would follow common practice in lay-offs due to down-sizing.
    So the Justices that are removed from the Court would be the 4 ( or 6 or 8 or 18 ) new justices that a Biden/Harris administration would have appointed.

    Packing the court only to have it ( and most of it’s decision ) reversed just two years later is an act of futility no moderate Democrat would take part in. Especially since it is THEIR seats that would decide if the party stays in control.

    No politician is going to sacrifice their career and seat for the purpose of a futile gesture of arrogance.

  2. Oh so you’re against the display of power by the Democrats? That’s so funny because I am all for it. The Republicans do it at every turn, and it is wildly successful for them. As a matter of fact, I am so tired of and so against their naked aggression I demand the Democrats follow suit to counter it. I have a family and want it to have a world where they can be healthy and prosperous, and conservatism is a twisted ideology that fights to ensure there won’t be one. SO shows of power: sign me up, otherwise forget it.

  3. I think adding 2 justices is an appropriate and proportional response to what Senate did to Garland and what they are about to do to Trump’s nominee.

    1. The Senate did nothing to Garland – there is no right to be a supreme court justice.

      McConnell and Republicans made a huge gamble – first that Clinton would not win, and 2nd that in not holding hearings on Garland that they would be held accountable by voters.
      In the end that gamble paid off.

      I would note that the court would have gone 6-3 long ago had republican nominees over the past 5 decades not proved so fickle.

      The really big deal about replacing Ginsberg is that with a 6-3 majority, Robertson’s wishy washy conservatism will be irrelevant.

      1. I would note that the court would have gone 6-3 long ago had republican nominees over the past 5 decades not proved so fickle.

        Read John Dean’s memoir of the judicial selection process during the Nixon Administration. I’m wagering Dean was telling the truth because it wasn’t helpful to his reputation and made Nixon and John Mitchell look foolish. Every aspect of it was half-assed and to top it off Nixon allowed himself to be pushed around by the ABA committee which had since 1953 been permitted to vet nominees (they arbitrarily vetoed one candidate). They got one satisfactory judge out of six attempts. From Dean’s account, Mr. Rehnquist’s nomination was an afterthought after several other candidates didn’t pan out and Nixon actually called Rehnquist ‘a clown’. Gerald Ford’s commentary on John Paul Stevens in 2005 gave evidence that Ford never had a serious thought in his head and just sent up a name ginned up by establishment Republicans at the Department of Justice. Ronald Reagan had promised in a publicity stunt to appoint a broad to the court, so his choices were constrained. He ends up appointing O’Connor as she was sponsored by Barry Goldwater. Unlike Nixon’s crew, the Reagan crew did some serious vetting. NB, Reagan was warned at the time by people who had looked into her record in the Arizona legislature that she would prove a disappointment, and they were right. Bork’s appointment was derailed by the loss of the Senate in the 1986 congressional elections and by a smear campaign orchestrated by the DC public interest bar. Bush the Elder came up with Kennedy and Souter to get past the Democratic Senate. I doubt Bush anticipated how wretched Souter would be (did his sponsor, Warren Rudman, know?). Each of the last five confirmation fights has been difficult-to-brutal

        1. Why would John Dean be a trusted source for ANYTHING ?

          No Matter what you might think of Nixon and his henchmen – John Dean was one of those and no more reputable than the rest.

          As to claims that anything Dean says is against his interests – that is nonsense. The moment he decided to turn on his co-conspirators making them look worse was in his interests.

          As to different presidents and their vetting process – the constitution gives the power to appoint to the president – not the ABA.
          And the power to confirm to the senate. Generally democrats have gotten what they expected from their appointments. Republicans have not.

          I think Schumers decision to change the senate rules to remove judicial appointments from the colture requirement will go down in history as one of the worst political blunders democrats ever made.

          It has allowed Trump to appoint a bevy of federalists to the courts and that is an excellent change.
          It will likely stall the leftward march of the country for decades.

  4. Turley calls what some democrats want a “court packing scheme” when Moscow Mitch and the Federalist Society has been at work for years to do exactly what Turley calls a “court packing scheme” the irony is priceless.

      1. He is a leftist – it means anything he does not like.

        Language for the left is about emotion not fact.
        Do the words used convey what you feel ?

        Reality for the left does not exist or more accurately is subject to the whim of leftist emotions.

    1. Starting with FDR democrats took more interest in transforming the country through the court rather than by persuading people.

      Starting with Nixon republicans started to adopt the same tactics.

      At the same time – only Democrats – FDR and now Harris have proposed actual court packing schemes.

      Absolutely both republican presidents, republicans senates and the federalist society have worked to get a judiciary that reflects their values – as have democrats.

      That of course begs the question of whether the values of the federalist society are superior to and/or more workable than the living constitutionalism of the left.

  5. Turley Quoted In Rittenhouse Story

    Teen Fights Extradition To Wisconsin

    A hearing was held Friday morning at the Lake County courthouse in Waukegan Illinois regarding Kyle Rittenhouse, the 17 year old charged with shooting 3 ‘protesters’ during a chaotic night in Kenosha Wisconsin.

    Rittenhouse’s surrendered to local authorities in Antioch Illinois, just below the Wisconsin border. His attorneys now intend to fight extradition to Wisconsin.
    ……………………………………………………………….

    George Washington University law professor Jonathan Turley said he thinks the largest advantage of the delay for Rittenhouse’s defense team is more time to gather resources or new evidence. It also could force prosecutors to provide more details about their case against Rittenhouse in support of extradition, he said.

    “This case is going to be challenging in a number of respects,” Turley said. “There are eyewitnesses, but forensics will also be important — the angle of shots, any powder burns or residue evidence. Those are issues that require not just the retention of experts, but an opportunity for them to examine the evidence. So the defense often tries to put the brakes on these cases at every stage to give themselves enough time.”

    Rittenhouse, who is white, is charged with first-degree intentional homicide in the killing of two white protesters and attempted intentional homicide in the wounding of a third. He also faces a misdemeanor charge of underage firearm possession for wielding a semi-automatic rifle. If convicted of first-degree homicide, he would face a mandatory life prison sentence.

    Edited from: “Teen Charged In Kenosha Shootings Fights Extradition”

    AP News, 9/25/20

  6. The Obama Coup D’etat in America is the most egregious abuse of power and the most prodigious scandal in American political history.

    The co-conspirators are:

    Kevin Clinesmith, Bill Taylor, Eric Ciaramella, Rosenstein, Mueller/Team, Andrew Weissmann,

    James Comey, Christopher Wray, McCabe, Strozk, Page, Laycock, Kadzic,

    Sally Yates, James Baker, Bruce Ohr, Nellie Ohr, Priestap, Kortan, Campbell,

    Sir Richard Dearlove, Christopher Steele, Simpson, Joseph Mifsud,

    Alexander Downer, Stefan “The Walrus” Halper, Azra Turk, Kerry, Hillary,

    Huma, Mills, Brennan, Gina Haspel, Clapper, Lerner, Farkas, Power, Lynch,

    Rice, Jarrett, Holder, Brazile, Sessions (patsy), Nadler, Schiff, Pelosi, Obama,

    Joe Biden, James E. Boasberg et al.

  7. If the Democrats thought it would work to their political advantage, we would be hearing the arguments in favor of a smaller court.

  8. Jonathan Turley, adding 8 for a court of 17 members is less ‘packing’ if these appointments come with staggered term limits.

    1. Oh, term limits not constitutional. Ok, appoint 2 from each of the 5 year age groups from 60 to 85. Accomplish the same.

    1. this is after they tried to mob a prius

      anarchy grows, regular motorists know, if you stop you end up like Reginal Denny. member him?

      1. ANTIFA is blocking traffic in Seattle too. anarchist terrorists allowed to harass, intimidate, and harm the citizens by Democrat mayor quislings

  9. Jonathan: Nominating judges to serve on the Supreme Court has always been an exercise in raw political power–whether by Republicans or Democrats. Trump is simply doing it in spades by making his third nomination so close to the election. It’s unprecedented and 62% of Americans think the vacancy should be filled by the next president. But Trump doesn’t like his chances in a fair election so he is playing the long game, to use a golf metaphor, by “packing” the Court with a super majority of like minded conservation retros. The short game is that when he goes to court to challenge closely contested elections in battleground states, especially involving mail-in ballots, he will have a Supreme in his corner. In the long term, even if he loses the election decisively, Trump thinks his legacy will be a solid conservative majority on the Court for decades.

    As a good conservative you blame the Democrats for this state of affairs. But they didn’t create this crisis. Had Trump simply allowed the next President to fill the vacancy we wouldn’t be in this place. You can’t blame the Democrats for wanting retribution in the event they win. To the winner go the spoils.

    1. “You can’t blame the Democrats for wanting retribution in the event they win.”

      bwahahahahahaha

      of course you did! otherwise you would not be denying it.

      sidebar: this trolling stuff can be fun! How does one get paid to do this for a living?

    2. except a few years ago the dems were demanding to fill a late term seat. What a bunch of poor losers. These guys were the kids who got the participation trophy and were told the score didn’t matter. I guess they forgot that now. Stoopid.

              1. I see you Anonymous the Stupid because you are Stupid any way one wishes to look at it.

                Take note that nothing you say has any significance. Why? Because you are Stupid. You have no imagination and a paucity of knowledge. Go back to the rat latrine.

  10. The communists (liberals, progressives, socialists, democrats, RINOs) have been (Robert) Borking conservative Supreme Court nominees for so long,

    Gov. Ron DeSantis described the “Trump Trifecta” as the “Democrats’ Comeuppance.”

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